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Temporary Restraining Order Suspends California’s Sex Offenders’ Housing Banishment Law

Temporary Restraining Order Suspends California's Sex Offenders? Housing Banishment Law

by John E. Dannenberg

The U.S.D.C. (N.D. Cal.) issued a Temporary Restraining Order (TRO) on November 8, 2006, the same day California voters approved state Proposition 83 (?Jessica's Law?), which suspended that portion of the new law (Penal Code § 3003.5) that banned registered sex offenders from residing within 2,000 feet of a school or park frequented by children.

Former sex offender John Doe, whose behavior for the past 20 years since his release from prison was unblemished, filed suit claiming that PC § 3003.5, as applied to him, amounted to punishment for a past crime, in violation of the Ex Post Facto Clause of the U.S. Constitution. He further alleged the new law violated his Fourteenth Amendment protection of liberty and property rights, because he would be irreparably harmed when forced to move from his home.

The court found that Doe's record as a law-abiding, productive member of the community and his liberty/property interests outweighed any public interest in immediate enforcement of PC § 3003.5(b) and (c) during pendency of his litigation, and that he had demonstrated a substantial likelihood of success on the merits. Accordingly, the court granted the TRO and set the matter for hearing on November 27, 2006 to consider Doe?s further motion for a preliminary injunction.California Attorney General Bill Lockyer called the law only "non-punitive" and opined that it "strengthens community safeguards against child molesters." Although Lockyer initially stated that he would apply the new law retroactively, he changed his position two weeks later and said that the law would only be applied prospectively. Doe's San Francisco attorney, Dennis Riordan, said that he would not drop Doe's suit until Lockyer agreed in writing to a settlement approved by the court. See: Doe v. Schwarzenegger, U.S.D.C. (N.D. Cal.) C 06-6968 JSW, Order, November 8, 2006.

The court later denied a preliminary injunction and dismissed the case when it held that the plaintiff lacked standing because the law did not apply retroactively to people convicted of sex offenses before the law's enactment. See: Doe v. Schwarzenegger, 476 F. Supp. 2d 1178 (ED CA 2007) and Doe v. Schwarzenegger, 2007 U.S. Dist. LEXIS 16244.

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Doe v. Schwarzenegger

Doe v. Schwarzenegger