City fights complaint over sex offender residency restrictions
A registered sex offender is claiming the city’s residency restrictions are unconstitutional.
Martin Weiss filed a complaint for declaratory and injunctive relief on August 2 in the Central District Court of California. The 16-page complaint claims Claremont’s sex offender residency restrictions, which were adopted in January 2010, violate the Fourteenth Amendment and constitute banishment from the city. Mr. Weiss wants them declared and void.
The city filed a response on September 29 seeking to dismiss the complaint with prejudice and demanding a jury trial.
The focus of the suit is Claremont municipal code title 9, chapter 9.82, which restricts sex offenders from residing within a “residential exclusion zone,” which means anywhere within 2,000 feet from a K-12 public or private school, park and/or child care center. According to the complaint, there is virtually no place for a sex offender registrant to live in Claremont, due to the city’s restrictions.
Additionally, the ordinance prohibits a registrant from “renting or otherwise occupying” a single-family home, multi-family home or a hotel anywhere in the city, if another registrant is also at the same dwelling, unless they’re related by blood, marriage or adoption.
“The exclusion zone basically says if you’re on a registry you can’t spend a single night in a hotel in Claremont,” Mr. Weiss’ attorney, Janice Bellucci, said in a phone interview.
The complaint states these laws not only hurt the registrant, but families of registrants as well. The document calls the restrictions an “arbitrary, politically motivated act imposed by a local government in response to popular sentiments, based upon misinformation, which seeks retribution against [Mr. Weiss] and other registrants who constitute a socially outcast minority.”
City Manager Tony Ramos told the COURIER he could not comment on the case due to pending litigation.
Mr. Weiss’ current residence is in North Hollywood, according to the Megan’s Law database. He was convicted of lewd and lascivious acts with a child less than 14 years of age in 2012, according to his offender profile.
While Mr. Weiss does not currently live in Claremont, the lawsuit states the city’s laws would restrict him if he so intends.
Ms. Bellucci cites case law in California that prevents blanket restrictions on all sex offenders in the state.
“You cannot basically restrict everyone in the sex registry from residing in certain places,” Ms. Bellucci said. “It has got be done on a case by case basis.”
Claremont’s ordinance was passed in 2010 on the heels of Proposition 83, better known as Jessica’s Law. Jessica’s Law increases penalties for people convicted of sex offenses, and initially prohibited offenders from living within 2,000 feet of a school until that part was struck down by the California Supreme Court in San Diego County in 2015.
In addition, the complaint states the provisions in Jessica’s Law that were struck down only intended to be applicable to parolees, as opposed to all offenders.
The complaint also states that offenders who have not been convicted of crimes against children are also affected by Claremont’s ordinance.
The city noted in its response that Mr. Weiss’ characterization of Jessica’s Law was not “accurate or correct,” but did not elaborate. The city, however, did acknowledge their restrictions extend to all sex offender registrants.
Many of the city’s responses to the claims in the complaint were flat denials or notes that the allegations were legal conclusions, which therefore did not require an answer. In some cases, such as Mr. Weiss’ intent to stay in Claremont, the city denied the allegation based on lack of information.
The city seeks to dismiss the claim, and has formally asked Mr. Weiss pay the city’s attorney fees.
This isn’t Ms. Bellucci’s first foray into repealing laws against sex offenders. She is the executive director of ACSOL (Alliance for Constitutional Sex Offense Laws), a Sacramento-based group that fights sex offender laws in California cities.
“Our purpose is in fact to protect the Constitution by restoring the civil rights of registrants and members of their families,” Ms. Bellucci said.
The group has filed 27 lawsuits challenging residency restrictions in California thus far—around one suit a month, by Ms. Bellucci’s estimation—and many more challenging other aspects of sex offender laws.
“We have probably filed 100 since we came into existence six years ago,” Ms. Bellucci said.
Every case that has settled so far, Ms. Bellucci says, has been the result of a full repeal or a revision of a city’s restrictions.
The reason for this kind of advocacy is to try to dispel the notion that sex offender registrants are a threat.
“The fact is there is absolutely no evidence to support any misrepresentation that a person on the sex registry poses a danger to an area, whether it is children or adults,” Ms. Bellucci said.
According to a 2015 report from the California Department of Corrections and Rehabilitation cited by Ms. Bellucci, of the roughly 56 percent of sex registrants who go back to prison over a three-year span, 90.8 percent are for parole violations, 6.3 percent are for a non-sex crime, 2.3 percent are for failing to register as a sex offender and 0.6 percent are for a new sex crime.
Ms. Bellucci has one goal in this case: “That they repeal their residency restrictions entirely.”
The city, meanwhile, has put forth 22 affirmative defenses in their quest to dismiss the complaint entirely.
Of those defenses, the city says the complaint fails to state a claim upon which relief can be granted. The city also says that Mr. Weiss lacks legal standing and has “unclean hands,” meaning Mr. Weiss acted unethically in regards to the subject of the complaint.
The city also notes in the response they acted in protection of the public interest by passing the ordinance.
A scheduling conference is set for November 16.