An Indiana federal district court has granted a preliminary injunction to the plaintiffs in an action challenging a City of Indianapolis ordinance that bans sex offenders from being within 1,000 feet of a public playground, recreation center, bathing beach, swimming or wading pool, sports field or facility when children are present, unless accompanied by an adult person not required to register as a sex offender.
The action was brought by the Indiana American Civil Liberties Union on behalf of four John Does subject to the City ordinance, which cleared the City-County Council by a 25-to-2 vote on May 15, 2006 and took effect immediately.
The Court found there exists at least 330 separate points within Indianapolis that can be identified as public playgrounds, recreation centers, bathing beaches, swimming pools, or sports fields or sports facilities. There are few, if any, areas in Indianapolis that can be traveled through or into that will not result in the traveler passing within 1,000 feet of one of these points.
In fact, it is impossible to travel Interstate 70, Interstate 65, or the entire length of Interstate 465 without passing within 1,000 feet of a prohibited area. It is also impossible to travel on the main local streets without intruding into those points. Finally, the Court found there were 108 polling places for the 2006 primary election that were within public schools with prohibited areas.
The Court found the ordinance was unconstitutional for three reasons. First, it found it was vague. There is no definition of what is meant by a sex offender being required to be "accompanied" by an adult. "Does this mean visual or auditory contact? What if the contact is broken momentarily? There is also no definition of what a 'public' playground is, leaving it open to anyplace open to the public even if not government owned."
The Court also found the Ordinance violated the Ex Post Facto Clause double jeopardy. The Court noted that "banishment and exile have throughout history been used as punishment." Here, the John Does are prohibited from traveling within 1,000 feet of banned areas. In fact, "they are not able to travel through the City of Indianapolis, John Doe I is not able to attend work, and John Doe II's ability to vote is severely restricted. Their very rights of physical movement have been restricted to such an extent that they are effectively banished from the City of Indianapolis. This constitutes historical punishment," the Court held.
The Court also found the Ordinance imposes an unconstitutionally severe burden on the right to vote. As such, the plaintiffs have met all the requirements to be granted a preliminary injunction to prevent enforcement of the Ordinance. The Court entered an order to that effect on October 5, 2006, in an unpublished order. See: Does v. Indianapolis, 2006 U.S. Dist. LEXIS 72865.
On November 20, 2006, the court also granted class certification with the classes defined as: "All persons who currently, or will in the future, live in, work in, or visit Marion County, and who are, or will be, persons within the category of sex offenders specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County.
"The sub-class, represented by John Doe II, is defined as:
All members of the class who will vote and whose voting places are within 1000 feet of the areas specified in Section 631-106(a) of Chapter 631 of the Revised Code of the Consolidated City and County." See: Does v. City of Indianapolis, 2006 U.S. Dist. LEXIS 84425.
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