By Michelle Lee
Libraries that ban all sex offenders from using their facilities should take note: it could be overturned in court.
The 10th Circuit Court of Appeals in Denver last month affirmed an earlier ruling by New Mexico federal district court that found the city of Albuquerque’s 2008 law, which banned all sex offenders from libraries, unconstitutional.
The ban was challenged in a lawsuit filed by the American Civil Liberties Union of New Mexico on behalf of a sex offender identified as John Doe.
“People have a First Amendment right to receive information in public and the government needs to explicitly justify its actions if it’s going to infringe on such a fundamental right,” the ACLU New Mexico executive director Peter Simonson said in a statement.
While the appeals court was “sympathetic to the city’s desire to ensure that its libraries provide a safe, welcoming environment for its patrons, especially children,” the city did not provide any evidence or justification for its ban and did not provide any “alternative channels” for offenders to receive information at public libraries.
However the ruling said Albuquerque’s goal of restricting sex offenders from libraries could be achieved through a revised ordinance.
Albuquerque’s ban was put in place by former Mayor Martin Chavez after officials noticed more sex offenders frequented the main library branch – especially the computer section – when students from a nearby Catholic school went there after school, said Greg Wheeler, the assistant city attorney who litigated the case.
The ban was modified in May 2010 by Mayor Richard Berry after the lawsuit, so that sex offenders were restricted to use of the main library from 10 a.m. to 6 p.m. on Thursdays and Saturdays, times when fewer children used the library, Wheeler said. In addition, sex offenders need to check in with library security guards and are banned from the children’s section.
There have been no complaints other than the lawsuit, or incidents in which children or parents have been approached by sex offenders, Wheeler said.
Wheeler said the city will not appeal the circuit court decision, and that he believed it upholds the current use policy for sex offenders. “If it’s narrowly tailored, it will survive,” he said of a library ban.
Brendan Egan, the attorney who handled the case for the ACLU of New Mexico, said they were happy their client’s rights were vindicated by the courts.
“You want to give anybody a chance for rehabilitation,” Egan said. “You have to leave some access to the library open. If a sex offender wants to do something meaningful, it negates their ability to check out a book on auto mechanics, or accounting, and limits their ability to improve themselves.”
The 10th Circuit Court of Appeals covers several western states, including Oklahoma, New Mexico, Colorado, Kansas, Utah and Wyoming.
One takeaway from the Albuquerque case “is absolute bans do not pass constitutional muster,” said Deborah Caldwell-Stone, the American Library Association’s deputy director for the Office for Intellectual Freedom.
Caldwell-Stone noted that the court opinion could provide grounds for lawsuits to contest sex offenders library bans in other states.
While the ALA does not have an official policy on the topic, Caldwell-Stone said they are generally supportive of laws with a “reasonable time, place and manner restriction.”
Caldwell-Stone noted that some libraries with bans, such as those in Massachusetts, makes a distinction among levels of sex offenses and only limits individuals with more serious charges.
“As far as we’re concerned, there are sex offenders who are not violent offenders or predators – the teen who was sexting, or was involved with someone younger – and aren’t identified as predators,” she said.
According to Caldwell-Stone, other issues for lawmakers to keep in mind are that public libraries need to be supportive of rehabilitating adult criminals and “there needs to be a reasonable alternative for people who need access to library services.”
Caldwell-Stone said her office does not know of any other library bans that are being challenged, but her office will continue to track this issue in the future.
No one affected by the local library bans has approached the ACLU of Massachusetts, spokesman Christopher Ott wrote in an e-mail.
However, the ACLU believes such library bans are not particularly because most sexual offenses against children are committed by people who know the child. ”The best way to protect the public is to educate parents and children about how to recognize inappropriate behaviors by any adults, not just strangers,” Ott wrote.
Iowa passed a state-wide ban in 2009 that prohibits people convicted of a sex offense against a minor from being on library property without written permission from the library administrator, from loitering within 300 feet of library property, and from working or volunteering in a library.
Mandy Easter, a law librarian for Iowa Library Services/State Library, wrote in an email that there do not appear to be any challenges against the law in the Iowa Court of Appeals or the Iowa Supreme Court.
Easter wrote “both sex offenders and their attorneys are currently reluctant to ‘test the waters’ again. Perhaps this federal court decision will give them the argument(s) they need to take another chance.”
Library bans for sex offenders vary across the country and sometimes they can be hard to enforce, said Jennifer Ekblaw, a law librarian at Boston University who wrote a paper on the issue for the Indiana Law Review.
Instead of completely prohibiting library use, Ekblaw said libraries should consider putting in more security measures, such as hiring more guards, installing cameras to monitor more isolated sections of the library or using a filtering program to limit sex offenders’ access to websites that might violate their parole.
“I think that would be a better approach because that would protect anyone in the library, whether they have any offenses or not, and protect people from any other safety hazard,” Ekblaw said.