Doe v. City of Lafayette, Indiana
| Citation | 160 F.Supp.2d 996 |
| Decision Date | 14 September 2001 |
| Docket Number | No. Civ. 4:00CV0076AS.,Civ. 4:00CV0076AS. |
| Parties | John DOE, Plaintiff, v. CITY OF LAFAYETTE, INDIANA, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
E. Paige Freitag, Equal Employment Opportunity Commission, Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for John Doe.
Jerome L. Withered, Withered, Corrigan and Service, Lafayette, IN, for City of Lafayette, Indiana.
This matter is before the court on the parties, John Doe and City of Lafayette, Indiana ("City") cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This court has jurisdiction pursuant to 28 U.S.C. § 1331.
The material facts in this case are not in dispute. John Doe has a long history of criminal behavior regarding children. He has numerous arrests and convictions ranging from child molestation to various misdemeanors including: voyeurism; exhibitionism and window peeping. (Dep. Doe at p. 11-16, 20-22). Doe's last conviction was in 1991 for attempted child molesting. (Dep. Doe at p. 17). His sentence included four years of house arrest and four years of probation in Lafayette. During his probation and house arrest he was not restricted from entering the Lafayette city parks. (Aff. Doe at ¶ 3). Doe has received various types of out-patient treatment for sex-addiction since the time of his arrest. (Dep. Doe at p. 31).
Doe has also received treatment for his addiction from Dr. Patricia Moisan-Thomas, Ph.D., an addictions counselor, as well as attending a sex offenders anonymous group. (Dep. Doe at p. 27, 31-32). Doe has not engaged in any incidents of molesting, voyeurism, exhibitionism since 1991. (Aff. Doe at ¶ 2). Dr. Moisan-Thomas has opined that Doe will always have inappropriate thoughts about sex. (Aff. Moisan-Thomas at ¶ 9). Doe admits to having inappropriate thoughts which he finds to be extremely unpleasant and has resumed taking drugs to alleviate his sexual urges. (Dep. Doe at p. 26-27). Dr. Moisan-Thomas has opined that there is no guarantee that Doe will never reoffend, however she feels that he is in control of his urges even without his medication. (Dep. Moisan-Thomas at 26-27, 33-35).
Sometime in January 2000, Doe began having inappropriate sexual thoughts about children. He then walked to Murdock Park where he saw a number of youths in their early teens and watched them from a distance for about 30 minutes. (Dep. of Doe at 23-28). Doe had fantasies about exposing himself or having some sort of sexual contacts with the youth. (Id. at 29). According to Doe, he recognized that these thoughts were inappropriate and then left the park. (Id. at 29).
Doe became extremely upset about the incident. He then reported the occurrence to Dr. Moisan-Thomas and his sex offenders group. (Aff. Moisan-Thomas at ¶ 6; Aff. Doe at ¶ 4). As a result of an anonymous source, Doe's former probation officer was informed that he was sitting in the park and watching children. (Reed at 8). The probation officer contacted the Lafayette Police Department and reported the incident. Subsequently, a discussion was held between Lafayette Police Chief Reed, Superintendent Mayes and the city attorney on the appropriate course of action. (Reed at 11-12). Based upon that meeting, the Park's Department issued an order to Mr. Doe which stated the following:
Due to reports of your improper behavior toward juveniles using city park property, you are hereby notified that you are not allowed to enter any city park property, including Columbian Park at any time for any purpose. If you are observed on park property, you will be arrested for trespass. (Reed at 10-13, Ex. 3)
The city of Lafayette has several large parks within its territorial limits. (Dep. Mayes at 3-9). The parks provide activities such as softball, swimming and numerous other activities. (Id at 5-6). The various parks are patrolled by a security force connected to the Parks and Recreation Department as well as by the Lafayette Police Department. (Dep. Reed at p. 14). The Superintendent of the Parks and Recreation Department has delegated to the head of security the authority to ban individuals from the City's parks. (Mayes at 21). The Superintendent admits that there are no documents or written procedures for banning individuals from the parks.1
Ban orders are typically issued in instances where teenagers or young adults have destroyed property or interfered with other park patrons. (Mayes at 17-18). The ban order is issued and the individual is then informed that if he or she returns to the park during the time that the order is in effect he or she will be arrested for trespass. (Id. at 20). Typically, ban orders are issued for a week or a summer in duration. (Id. at 19). In this instance, Doe was issued a permanent ban order from all city parks. (Reed at p. 10-13, Ex. 3).
Doe seeks a lifting of the ban order in order to partake in a softball league which he participated in before the ban order, attend events at Loeb Stadium in Columbian Park, and attend outings in the park if they should arise. Furthermore, he contends that the ban prevents him from walking in the park with his adult friends. (Id.).
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c) Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here there are no issues of material fact in and therefore summary judgment is appropriate with respect to the disputed issues of law.
This case presents an issue of first impression in this circuit; whether a convicted sexual offender who is no longer serving a sentence or probation can be permanently banned from a city park after entering the park, watching young persons in the park and having inappropriate sexual thoughts about those young persons. Doe contends that the imposed ban order violates his First Amendment rights by punishing him for mere inappropriate thoughts and his substantive due process rights to enter the Lafayette city parks.2
The concerns of sexual predation upon this nation's children population is long standing and well documented. See Cornwell, Protection and Treatment: The Permissible Civil Detention of Sexual Predators, 53 Wash. & Lee L.Rev. 1294 (1998). During the 1930s several states had legislation in place to detain "sexual psychopaths," "sexually dangerous persons," and "sex offenders." See Swanson, Sexual Psychopath Statutes: Summary and Analysis, 51 J.CRIM.L. CRIMINOLOGY & POL. SCI. 215, 224-35 (1960-1961). More recently, states have enacted commitment statutes and notice statutes which serve to prevent future sexual predatory acts. See Wash.Rev.Code Ann §§ 71.09.010-.120 (West 1992 & Supp.1995) (Civil Commitment Statute for Sexual Predators) and Ind.Code § 5-2-12-1, et seq. (Indiana's Sex Offender Registration statute). Today nearly every state has enacted some form of notice registration of convicted sexual offenders. These statutes were prompted by federal legislation that restricted federal funds for failing to enact these certain notification requirements. 42 U.S.C. § 14071.
In the context of general public welfare, states have used the exercise of their police powers in an effort to ensure the safety and health of its public. Generally, states are free to impose restrictions that have a rational relation to the goal of public safety. See Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 486-88, 75 S.Ct. 461, 99 L.Ed. 563 (1955); See also; Laurence H. Tribe, American Constitutional Law s 8-7 at 582 (2d. ed.1988) (entailing deferential approach to regulatory enactments to promote public goals). Undoubtedly, the city of Lafayette has strong and compelling interests in preventing sexual criminal acts upon its young.
Notwithstanding its strong public safety concerns, the city of Lafayette also has concerns of possibility lawsuits by various private parties if after learning of Doe's actions it failed to affirmatively act. See Benton v. City of Oakland City, 721 N.E.2d 224, 232-233 (Ind.1999). ("all governmental units are bound both directly and under the theory of respondeat superior, by the common law duty to use ordinary and reasonable care under the circumstances."); Angell v. Hennepin County, 565 N.W.2d 475, 479 (Minn.App.1997), aff'd, 578 N.W.2d 343 (Minn.1998). ("Plaintiff sued Hennepin County, the HCRRA, the City of Minneapolis, and Minneapolis City Parks and Recreation Board alleging negligent failure to maintain the said premises, negligent failure to warn of an ultra hazardous condition or negligent failure to erect barricades to prevent injury."); Spivey v. City of Baxley, 210 Ga.App. 772, 774, 437 S.E.2d 623 (1993). (Failure to warn of dangerous condition). Thus, not only did the city of Lafayette have strong public safety and health concerns, it was put on notice by a reliable source that a convicted sex offender had been to one of the city parks and was having inappropriate sexual urges of the children in that park. Thus, it was put on notice and was using ordinary and reasonable care under the circumstances in attempting to protect the public.
Doe begins with the proposition that the...
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Doe v. City of Lafayette, Ind.
...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 The district court began by noting that "[o]rdinarily, in order for a violation of the First Amen......