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On July 30, 2009, a New Hampshire state district court held that a city ordinance restricting where sex offenders could live violated the Equal Protection Clause of the New Hampshire Constitution.Richard Jennings, a resident of Dover, was charged with violating city ordinance 131-20, which prohibited a person who was required to register for life as a sex offender from living within 2,500 feet of the property line of a school or day care center. Violators were subject to a fine up to $1,000.In Dover District Court, Jennings argued that the ordinance violated his equal protection rights under the New Hamp-shire Constitution. He presented an expert witness, Carolyn Lucet, who treated both sex offenders and children who were victims of sex crimes. Lucet testified that numerous studies of ordinances which limit where sex offenders can live have shown that such restrictions are not effective in preventing sex offenders from re-offending. In fact, they may actually in-crease the likelihood of recidivism by cutting sex offenders off from friends and relatives who are willing to support them. Lucet also noted that 93-95% of sexual assaults against children are committed by someone the child knows, not a stranger. Thus, “the ordinance did not address the 93-95% of situations involving sexual assaults against children,” the Court observed.City Councilman Matthew Mayberry testified that he came up with the idea of an ordinance to ban sex offenders from living in Dover to prevent them from sexually abusing children. When Mayberry discovered that such an approach would be unconstitutional, he, the city’s attorney and the city’s police chief researched ordinances that courts had upheld in the face of due process challenges, intending to enact an ordinance as restrictive as legally possible. They did not consult any experts as to the potential effectiveness of the ordinance.Mayberry “explained to the Court that he did not need an expert because no one could tell him that a sex offender was ever rehabilitated as he felt that once someone was a sex offender they would always continue to be a sex offender.” Mayberry said he considered this to be a matter of common sense.The city council passed the ordinance unanimously, having heard only testimony from the police chief. The council members believed the ordinance was constitutional because areas remained within the city where sex offenders could still live, including a trailer park, various apartment complexes and several hundred homes valued at less than $200,000.Applying the intermediate scrutiny test for an equal protection challenge to an ordinance that affects the right to use and enjoy property, the district court held that the City of Dover failed to show that the ordinance was substantially related to an important governmental objective. “There is no question but that the State’s interest in protecting minors is ‘compelling.’ However, the State has not produced any evidence showing a causal connection between the [sex offender] residency restrictions and the protection of minors,” the Court wrote. Unexamined “common sense” was simply insufficient.Therefore, ordinance 131-20 violated Jennings’ equal protection rights, and the charges against him were dismissed. See: State v. Jennings, County of Strafford, Dover District Court, Docket No. 7679. The ruling is available on PLN’s website.

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