377 F.3d 757 (7th Cir. 2004), 01-3624, Doe v. City of Lafayette, Ind.

Docket Nº:01-3624.
Citation:377 F.3d 757
Party Name:John DOE, Plaintiff-Appellant, v. CITY OF LAFAYETTE, INDIANA, Defendant-Appellee.
Case Date:July 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 757

377 F.3d 757 (7th Cir. 2004)

John DOE, Plaintiff-Appellant,

v.

CITY OF LAFAYETTE, INDIANA, Defendant-Appellee.

No. 01-3624.

United States Court of Appeals, Seventh Circuit

July 30, 2004

Reargued En Banc Jan. 8, 2004.0

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Kenneth J. Falk (Argued), Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiff-Appellant.

Jerome L. Withered (Argued), Withered & Corrigan, Lafayette, IN, for Defendant-Appellee.

Before FLAUM, Chief Judge, and POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

In February of 2000, the City of Lafayette, Indiana, issued John Doe, a convicted sex offender, a letter, informing him that he was banned from all public parks under the City's Jurisdiction. In November of 2000, Mr. Doe initiated this action, alleging that the ban violated his rights under the First and Fourteenth Amendments of the Constitution of the United States. The United States District Court for the Northern District of Indiana granted summary judgment to the City. For the reasons set forth in the following opinion, we now affirm the judgment of the district court.

I

BACKGROUND

A. Facts

John Doe has a long history of arrests and convictions for sexually related crimes. In most of these instances, children were the victims. His criminal history includes convictions for child molestation, attempted child molestation, voyeurism, exhibitionism and peeping. These crimes date back to 1978, when Mr. Doe went into a locker room at a local school, pulled down the swimsuit of a ten-year-old boy and performed oral sex on him. The next year, Mr. Doe forcibly performed oral sex on a twelve-year-old boy. He approached the boy in the parking lot of a local school and asked the boy to unzip his pants; after the boy refused, Mr. Doe unzipped the boy's pants and performed oral sex on him. In 1985, Mr. Doe admitted to peeping into windows of an apartment of a female at

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1:20 a.m. In 1986, Mr. Doe admitted to masturbating in full view of three children who lived in the home next door. During questioning on this incident, the police also asked Mr. Doe if he recalled "masturbating on the back porch with one of the next door neighbor children and another friend out in the back yard." Reed Aff. Ex.D. Mr. Doe answered: "That's possible." Id. In May of 1988, Mr. Doe was arrested for peeping into the windows of an apartment in West Lafayette. In October of 1988, he admitted to standing outside a house, looking through a window at what he perceived to be a teenage boy and masturbating with his penis exposed. He also admitted this behavior occurred on a number of previous occasions in then-recent history. Mr. Doe explained to police: "[I]t's happened times before, you know that. I've told you this before I'm still seeing a therapist and working on it, but I .... I can't make any excuses. I mean ahh it just happens. Ahh." Reed Aff. Ex.F. In May of 1990, Mr. Doe was arrested for public intoxication and resisting law enforcement following a report that he was tapping on the rear window of a female's house. In October of 1990, Mr. Doe whistled to three teenage boys--ages ten, fourteen and fifteen--and motioned for them to come into an alley near the Village Pantry. See Reed Aff. ¶ 4(h). He asked the boys if they wanted to receive oral sex, and he also unzipped his pants. The three boys fled the area. This incident resulted in Mr. Doe's last conviction, which was finalized in 1991. Mr. Doe was placed on house arrest from January of 1992 to January of 1996. See Doe Dep. at 17. He then was on probation until early January of 2000. See id.

We now come to the incident that precipitated the situation before us. In January of 2000, Mr. Doe's probation officer, Joe Hooker, received a call from a "confidential source," informing Officer Hooker that Mr. Doe "had been 'cruising' parks and watching young children." Reed Dep. Ex.1. The anonymous caller recounted an incident that occurred earlier that January. Mr. Doe's own description of this episode, in his deposition, vividly describes what took place:

A. Well, I parked my car at Parkside Pharmacy across from Murdock Park. I saw three males and two females on the ball diamond there at Murdock Park.

Q. Kids?

A. Possibly early to mid teens, so yeah, they were underage. I walked over to the ball diamond. By the time I got over there, they were behind the--there's a drop-off, a valley or whatever down behind the ball diamond that leads over to Ferry Street, I believe. They were down in that area, and I stood there and watched them for a while, probably 15 minutes, maybe a half-hour, I said to myself: I've got to get out of here before I do something, I left.

...

Q. What was your purpose in going to Murdock Park that Saturday evening?

A. Well, as I was going home that night, instead of going my usual route, I took a side street, and one side street led to another, led to another, led to another, and before I knew it, I was at Columbian Park, and so then I decided just to go over to Murdock Park. I don't know. I guess I was, for whatever reason, I was in the mood of cruising.

Q. What do you mean by "cruising"?

A. Just looking to see what's there.

Q. Looking for children?

A. Mostly, yeah.

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Q. Were you having those urges that night?

A. Yeah, you could probably say that, yeah, yes.

Q. When you got out of the car and walked into Murdock Park, what were you thinking about?

...

A. When I saw the three, the four kids there, my thoughts were thoughts I had before when I see children, possibly expose myself to them, I thought about the possibility of, you know, having some kind of sexual contact with the kids, but I know with four kids there, that's pretty difficult to do. It's a wide open area. Those thoughts were there, but they, you know, weren't realistic at the time. They were just thoughts.

Doe Dep. at 27-29.

Officer Hooker forwarded the information from the anonymous caller to the Lafayette Police Department. Robert Reed, Lafayette's Police Chief, was aware of Mr. Doe's criminal history, and he initiated discussions with various officials regarding the appropriate response. He contacted Vicki Mayes, Superintendent of the Lafayette Parks and Recreation Department, and Dr. Ed Eiler, Superintendent of the Lafayette School Corporation, and advised them to issue a ban ordering Mr. Doe not to enter the City's public parks or schools. Chief Reed explained that he gave this advice "because of the duty I have to protect the citizens, and specifically the children of this community, from the imminent danger posed by John Doe." Reed Aff. ¶ 5.

On February 2, 2000, Superintendent Mayes sent a letter to Mr. Doe informing him that he was prohibited from entering the City's parks, 1 and, on February 3, 2000, Dr. Eiler sent Mr. Doe a letter informing him that he was prohibited from coming on school grounds. Neither of the bans, which are still in effect, have a termination date nor are they limited to certain geographical areas within the public property at issue. In this case, Mr. Doe challenges only the ban from the public parks, and not the public schools. He claims that he would like to go to the parks to play softball, watch the Colt World Series, 2 attend a company outing if one takes place at one of the City's parks and take walks with friends. See Doe Aff. ¶ 7. However, Mr. Doe also testified that, other than the January 2000 evening in question, he has not been in a city park since his 1990 arrest. See Doe Dep. at 30.

Mr. Doe is currently continuing therapy under the supervision of Dr. Patricia C. Moisan-Thomas. From 1986 until his 1990 arrest, he saw Dr. Moisan-Thomas "off and on ... probably maybe once a month." Doe Dep. at 31. From 1990 to present, he has seen her "pretty much on a weekly basis." Id. Mr. Doe also currently attends a self-help group for sexual addicts, and, at some point after January of 2000, he voluntarily began taking medications to control his sexual urges. See Moisan-Thomas Dep. at 20. Mr. Doe and Dr. Moisan-Thomas both testified that "Mr. Doe, like any other addict, does not

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have control over his thoughts" and that he "will always have inappropriate thoughts." Moisan-Thomas Aff. ¶ 9; Doe Aff. ¶ 6 ("I recognize that I will always have inappropriate thoughts regarding having sexual contact with children."). Mr. Doe and Dr. Moisan-Thomas also believe that, in the last ten years, he has learned how to resist these inappropriate urges. Moisan-Thomas Dep. at 27, 33-34; Doe Aff. ¶ 6. In this regard, Dr. Moisan-Thomas opined that the January incident in the park was a "good thing," at least for Mr. Doe, because "[i]t gave him the opportunity to use his relapse prevention program and to learn about his limits." Moisan-Thomas Dep. at 27-28. Still, Dr. Moisan-Thomas readily concedes that she can give "absolutely no[]" guarantee that Mr. Doe will not reoffend, and, when asked if sexual addicts, such as Mr. Doe, "do fall down that slippery slope sometimes," Dr. Moisan-Thomas responded: "Sometimes they do." Id. at 35.

B. District Court Proceedings

On September 14, 2001, the United States District Court for the Northern District of Indiana granted summary judgment to the City on Mr. Doe's claims under the First and Fourteenth Amendments. See Doe v. City of Lafayette, 160 F.Supp.2d 996 (N.D.Ind.2001).

1. First Amendment Claim

The district court began by noting that "[o]rdinarily, in order for a violation of the First Amendment to occur, there first must be some form of expressive speech or conduct that is intended to convey a message." Id. at 1000. However, the court held, Mr. Doe had not articulated any form of expressive conduct which was impinged by his ban from the City's parks. Furthermore, the district court rejected Mr. Doe's contention that his right to freedom of thought was infringed...

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