February 16, 2018

Appeals Court Finds Library Sex Offender Ban Unconstitutional

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.

Knox County, TN, enacted a ban in September 2011.

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  1. Hopefully, this is the beginning of the end for overly-restrictive, feel-good sex crime laws that take away time, money, and focus from more effective approaches. I wonder how many children were being abused by family members or acquaintances in their own homes while legislators sat in their offices, patting themselves on the back, and parents were fooled into believing their children were somehow safer.

  2. Wow, this is jist great. Now convicter felon sex offenders have more rights than parents of young children. Should we set up special playgrounds for our kids where these preverts can go to peruse their potential victims?

    • Wondering HUH? WHAT?!? says:

      Loco Jack it would appear you need to maybe make use of one the librarys yourself! Or take a spelling class! If you read the article it clearly states that there are no complaints or known of deviant sexual acts, other than the than the lawsuit filed from the city. I can only assume the former mayor had been molested in a library which brought out his days of being an alter boy in a catholic church!
      This is as stated a persons first amendment right. This is also not telling you that sex offenders have more rights than a parent, please take note as to not all conivicted sex offenders are violent or predators.
      This brings me to Shana you are rite on track with the lets make ourselves look better by making up law after law for sex offenders “feel good crime laws”. Let us know take a look back at lets say the past 10 years or so. There have been police officers, firefighgters, movie stars, political figures, judges. Who have commited one of these sexual acts of devience, but were not convicted of there devious and hanious crimes. They were all given slaps on the wrist.
      So yes Shana where were the legislators when it would come time to actually see the realities of what was going on. Making up law after law is not the solution, making life harder for someone who was in the wrong place, not a actual predator or even violent, possibly even wrongfully accused and convicted of.
      Not very long ago we’ve had hazing going on in some New Mexico high schools, these boys were penetrating other boys with forien objects! Is this not a violent sex crime? I would think this is as close to rape as you can get. The boys who recieved the torture are probably know in discust and have no faith in the justice system. I think the outcome was a minimual punishment for these boys, would you not want to have people like this on the sex offender registary? A albuquerque cop had an on going sexual affair with a 13 yr. old girl. This was excused as consentual sex! From what i understand this would be handed down as a statutory rape sentence, but again only if your just the average Joe. These are just two examples of bad judgement and also that again that a person can end up on the registary and need not be on it, some people just get a bad deal in life.
      The prosecuting judges in these cases must not have the judgement skills that are required for such cases or get paid very very very well!!!
      Back at Loco Jack know think about what i just wrote. If you still dont understand let me just tell you. No matter what there is always gonna be that person around who is deviant and will never know ourselves, so as a father myself I understand that fully! Just got to be alert and aware.
      Time and money are wasted on some of these so called predators, if they have proven themselves that they are not who they were accused of being then the money, effort and time spent on them should be focused on catching real preadators. This can be all taken up with liar, cheater, thief, former dictator billy richardson.
      He double jeaporodized all past convictions if a person signed or agreed to a plea agreement it didn’t matter. People that had agreed to certain time on the registary for there alleged crimes now are put on lifetime registrations, please tell me if i’m wrong, but once a plea agreement is made is not to be leagally bound to its agreement with the state n the defendant? Is this not a violation of our great Constitution of The United States of America. This may also be the way he kept the heat off himself, as we all know of his wrong doings as well as his past administration.
      I seen a show on television which pointed out that the then dictator went to a foriegn country as an embassador to help free a woman convicted of drug trafficking. Not sure who picked up that tab, but this shows a big lack of morals and his intellegence level. I guess if you look at it on the positive side, hardcore drugs are cool with billy richardson!

    • Mondayfever says:

      Blasting someone else for misspelled words, while absolutely ignoring your own poor language skills and obvious trolling, does not help.

    • josh voris says:

      Dude, I don’t understand how people as moronic as you are allowed to use the internet to speak of things you obviously know very little about. I’m a 26 year old man who is a full time college student and have been unemployed now because I am listed on a registry for 10 years of my life. I have a 4 month old girl and I would be as protective of her as any parent would be. Being a parent is hard enough as it is and I’m sure I will realize that that job only gets harder as they get older. Do I think that I am a pervert? NO. Do I think that I should be a registrant because I had consensual sex with an underage girl one time? NO. I had never done anything wrong in my life up to this point and since. I do admit my guilt in making a wrong decision and have dealt with MANY different forms of punishment that I’ve been given. I’m still here. Although I can understand to a very small point from where your coming from I think you need to wake up and quit acting stupid.

      Sincerely Yours,
      Your so-called pervert

  3. Wondering HUH? WHAT?!? says:

    monday fever was a nerve hit? Other than blasting back at me, what comments or opionions do you actually have about this article? Where or how do you figure there is obvious trolling? Appparently your ignorant in your own way yourself, don’t cry know that youve been blasted back at. Look at what josh voris wrote which is very bold of him. He admitted his poor judgement of sleeping with a minor and know deals with the punishment. We all do however know that you cant have consensual sex with a minor. So in societys eyes he will be looked at very differently when he is recognized as a registered sex offender. There will be people out there who will and do understand things happen in life. As I stated not all convicted sex offfenders are violent or predators, and yes of course some are, there are and always will be the people in society that will need help with these issues or problems of deviancy. It is very sad and unfortunate that someone could or would harm another in that way. So take this as you will i’m sure there’s something said wrong here!

  4. I am a sex offender. I’ve had this label nearly my entire adult life, and I’m not what comes to mind when I hear that word. It’s too bad that there is so much fear and frenzy over the subject and that misperceptions about sex offenders and recividism rule the discourse on the subject. I had consentual sex with a 14yo girl when I was 22. What I did was wrong, and I will never say otherwise, I had never been propositioned like that in my whole life-in the 6 months prior to that, she gad been with more people than I had been with in my entire life. I just got out of the army after catching my best friend and girlfriend in the act–talk about being on the rebound! I met the victim outside of a bar after midnight and was already pretty drunk and looking to have company. Because I was intoxicated and didn’t know her, and had a relationship with her again the next day, the worksheet said I was a higher risk than if I was completely sober and forcibly raped an 18yo that I knew. The system is flawed.
    I know the perception is that an offender will always want to strike again, but I’m the LAST person who would ever reoffend! I’m more likely to win the lottery than to reoffend, because I still want to buy a lottery ticket. I’m a grown man now and don’t see myself as a ‘young person’ like I did at the time. I’m not a gambling man, but I will LITERALLY bet you my life I never reoffend–you can put me to death if I ever committed another sex crime, or you could lock me away for life–you don’t even have to feed me–it’s not going to happen!
    I don’t think that letting me have the presumption of innocence that all other citizens enjoy is the same as “having more rights than parents and children.” No one fears sex offenders more than me: I share your disgust whenever a sex crime is committed, but also dread what kind of public/legislative backlash is going to be coming down the pipe when the real offender goes to jail.
    I went to Iowa when I got out of the army to take care of my dying grandfather, and when I went out to celebrate my freedom a week and a half later, I ended up losing it all–i spent 2 months in jail before I was bonded out to go to his feuneral. When the 2000 foot law was struck down in 2004, my fiancee (now wife of 8 years) and I got married and bought a house. The next year the law was upheld retroactively, so we were forced from our home and left the state. Our families have sufferred greatly and she still blames herself for her dad’s death within 2 years of our leaving. We have had our property vandalized and I’ve experienced a lot of trouble finding work, as well as the constant fear that somehow there’s going to be something that I won’t know about having to register for everything all the time–take a day off work to go update with the sheriff because I got a linked-in account; can’t take a weekend trip anywhere, etc. Believe me when I tell you I have been punished, but I’d take a lot more just to have it be over! But to justify this registry system and make it look like I might reoffend just isn’t true and does a disservice to all involved and ties up scarce resources making the haystack bigger instead of pinpointing the real pricks in it.
    “But if it saves just one child…”Yes, please save one child–mine! We waited until after 10 years from my conviction date (for the misdomeanor charge I pled to) to have a baby, not wanting to ruin a kids childhood with this stain on them: have to live in a sex offender ghetto outside society, being ostracized, teased, bullied, and shunned by other kids and their parents–this isn’t something I would wish on my enemies, and certainly not their children! She should not be exposed to such topics, and certainly not have to hear people ignorantly declare her dad to be a monster. Waiting to get off the registry is like waiting for it to strike midnight on a clock with no hands! You’re told 10 years, and 10 years later they make it 25. Who knows what it will be next year, or whenever some sicko strikes again. You have my DNA, you have everything about me in the system–why the constantly jumping through hoops to stay ‘compliant’ OR ELSE…?
    There is no price I won’t pay to provide a normal life for my daughter–but please stop applauding laws that make my family pay the price for a violent predator making the news! If you can believe there’s a profound difference between being a ‘dumb old boy’ and a ‘dirty old man’ I’ll never give you reason to regret it! I am a decent citizen and have done very well in Nevada. It doesn’t seem right that my only hope is that states are going bankrupt and can’t maintain these costly, innefective beaurocracies. For your sake as well as mine, focus the resources where they belong and lock up people who are truly dangerous instead of making it illegal for me to go to the library or take my daughter to the park. I’ve heard it said that “the most terrible sins are the ones we have not committed,” and I think there’s a lot of truth to that, but mine seems worse the older I get, especially now that I have a little girl of my own, but I can’t take that mistake back–all I can do is offer my life in exchange for a 2nd chance and pray that my family quit suffering for my sin of 12 years ago.

    • Wondering HUH? WHAT?!? says:

      Hey Mike props on your acknowlegement to you admitting your wrong doing. Although as I have previuosly stated sex with a minor is considered stautory rape consentual or not! And had you been a movie star, famous athlete, politician, priest, and best of all a cop! You’d be a free man and still admired as a hero! And like micheal jackson, only aleged alligations! Unfortunatley its not like that. You had one victim and hopefully only one but are thought of to have many and possibly have more! So yes in societys eyes you are a victim of ill laws. Dont know that you did time for your crime, but I was recently thinking and wondering how hippocritical a prison inmate really is, not all but probably most. They say sex offenders in prision are the lowest, but there are guys locked up and not for a sex crime just there on a stertch eventually some end up raping another inmate. So why dont these so called hard cored guys have to registar as sex offenders? Regaurdless if they did it or not while locked up. These are after all ex cons and usually are never trusted again in society, far and few between. This a violation towards another man and his butt! So a guy commits tax fraud does this mean its ok to go to prision and live among violent people on a long visit who will more than likely get desperate and not care. This is a true sex offender!Upon there release they should be registered when they walk out those fences. And i can almost gaurentee has never been brought to the table or maybe ever thought of. That would be to simple and time consuming!!! And regaurdless somewhere along the way youll be frowned upon if not already. always remember your not famous! just another guy. And regaurdless of how you feel, I still have no respect for a person who has claimed to have had consentual sex with a 13 or 14 yr old. Only respect for your honesty about your crime.