Doe v City of Lafayette, Indiana
7-30-2004 377 F.3d 757 (2004)
In February of 2000, the City of Lafayette, Indiana, issued John Doe, a convicted sex offender, a letter, informing him that he was banned from all public parks under the City's Jurisdiction. In November of 2000, Mr. Doe initiated this action, alleging that the ban violated his rights under the First and Fourteenth Amendments of the Constitution of the United States. The United States District Court for the Northern District of Indiana granted summary judgment to the City. For the reasons set forth in the following opinion, we now affirm the judgment of the district court.
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Doe's actions do not come close to criminal conduct punishable as stalking. He did not "continually" or "repeatedly" go to the public park; his ban order was based on a single visit. See Landis v. State, 704 N.E.2d 113, 113 (Ind.1998) (holding that "the crime of stalking by its nature necessitates proof of repeated or continuing acts"). Nor did Doe's gaze or proximity cause any specific person to feel 784*784 frightened or threatened; indeed, there is no evidence that anyone even noticed Doe's presence. Frazier v. Delco Elecs. Corp., 263 F.3d 663, 668 (7th Cir.2001) ("The stalking victim who doesn't know that she is being stalked is not in fear of being injured."). Most importantly, Doe's conduct — going to a public park with improper thoughts about children previously unknown to him — did not harm any of the youths in the park, unlike the terror caused by actions criminalized as stalking.[10]
III. CONCLUSION
In the City's haste to take action to protect its children, an admirable goal, both the majority and the City fail to apprehend the possible secondary effects of this ban on the very safety it seeks to ensure. As a society grappling with the problem of pedophilia, see Crane, 534 U.S. at 414, 122 S.Ct. 867 (requiring some lack-of-control determination in the civil commitment of convicted pedophile), we have limited resources in our arsenal to address the possibility that someone like Doe may reoffend. Once released back into our society, a former sex offender must feel free to seek therapy and must be supported in his efforts to control his urges rather than penalized. Why deter former sex offenders from one of the few treatments available? The importance of therapy cannot be understated. See 51 Am.Jur.3d § 5 ("the group (led by the therapist) works on each member's issues, such as denial, guilt, the offender's own sexual trauma, or lack of empathy for the victim. This is a common technique for outpatient treatment of sex offenders (often a condition of probation)..."). The First Amendment's concern with freedom of thought as a basis for the freedom of expression is highlighted by the facts of this case. The chilling effect of this ruling, i.e., that the communication of one's thoughts may result in being banned from public spaces, is frightening. See Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir.2004) ("The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights."). To oversimplify the issue, as one of location or logistics (i.e., the argument that Doe can simply think elsewhere) fails to address the problem of chilled speech, or here thought, that the First Amendment seeks to secure.
One cannot be a thinking member of society and not be acutely aware of the critical problem of sex offenses against children. The substance of Doe's sexual fantasies about children are repugnant and deplorable. Doe himself admits that. But, of course, the fact that this court or the City of Lafayette finds Doe's thoughts offensive does not limit the amount of First Amendment protection they are afforded. See Free Speech Coalition, 535 U.S. at 245, 122 S.Ct. 1389 ("It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities."); Am. Booksellers Assoc. v. Hudnut, 771 F.2d 323, 327 (7th Cir.1985) ("Under the First Amendment the government must leave to the people the 785*785 evaluation of ideas."); Collin v. Smith, 578 F.2d 1197, 1200 (7th Cir.1978) (noting that the First Amendment covers protected speech even though it may be "repugnant to the core values held generally by residents of this country"). Despite our repudiation of the content of his thoughts, the City of Lafayette may not punish Doe for his thinking alone, for without protection from government intrusion into our thoughts, the freedoms guaranteed by the First Amendment are virtually meaningless.[11]
Doe v City of Lafayette, Indiana
6-27-2003 334 F.3d 606 (2003)
John Doe was banned for life from all park property in the City of Lafayette, Indiana — including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.
Doe v City of Lafayette, Indiana
9-14-2001 160 F.Supp.2d 996 (2001)
The material facts in this case are not in dispute. John Doe has a long history of criminal behavior regarding children. He has numerous arrests and convictions ranging from child molestation to various misdemeanors including: voyeurism; exhibitionism and window peeping. (Dep. Doe at p. 11-16, 20-22). Doe's last conviction was in 1991 for attempted child molesting. (Dep. Doe at p. 17). His sentence included four years of house arrest and four years of probation in Lafayette. During his probation and house arrest he was not restricted from entering the Lafayette city parks. (Aff. Doe at ¶ 3). Doe has received various types of out-patient treatment for sex-addiction since the time of his arrest. (Dep. Doe at p. 31).
Doe has also received treatment for his addiction from Dr. Patricia Moisan-Thomas, Ph.D., an addictions counselor, as well as attending a sex offenders anonymous group. (Dep. Doe at p. 27, 31-32). Doe has not engaged in any incidents of molesting, voyeurism, exhibitionism since 1991. (Aff. Doe at ¶ 2). Dr. Moisan-Thomas has opined that Doe will always have inappropriate thoughts about sex. (Aff. Moisan-Thomas at ¶ 9). Doe admits to having inappropriate thoughts which he finds to be extremely unpleasant and has resumed taking drugs to alleviate his sexual urges. (Dep. Doe at p. 26-27). Dr. Moisan-Thomas has opined that there is no guarantee that Doe will never reoffend, however she feels that he is in control of his urges even without his medication. (Dep. Moisan-Thomas at 26-27, 33-35).
Sometime in January 2000, Doe began having inappropriate sexual thoughts about children. He then walked to Murdock Park where he saw a number of youths in their early teens and watched them from a distance for about 30 minutes. (Dep. of Doe at 23-28). Doe had fantasies 998*998 about exposing himself or having some sort of sexual contacts with the youth. (Id. at 29). According to Doe, he recognized that these thoughts were inappropriate and then left the park. (Id. at 29).
Doe became extremely upset about the incident. He then reported the occurrence to Dr. Moisan-Thomas and his sex offenders group. (Aff. Moisan-Thomas at ¶ 6; Aff. Doe at ¶ 4). As a result of an anonymous source, Doe's former probation officer was informed that he was sitting in the park and watching children. (Reed at 8). The probation officer contacted the Lafayette Police Department and reported the incident. Subsequently, a discussion was held between Lafayette Police Chief Reed, Superintendent Mayes and the city attorney on the appropriate course of action. (Reed at 11-12). Based upon that meeting, the Park's Department issued an order to Mr. Doe which stated the following:
Due to reports of your improper behavior toward juveniles using city park property, you are hereby notified that you are not allowed to enter any city park property, including Columbian Park at any time for any purpose. If you are observed on park property, you will be arrested for trespass. (Reed at 10-13, Ex. 3)
The city of Lafayette has several large parks within its territorial limits. (Dep. Mayes at 3-9). The parks provide activities such as softball, swimming and numerous other activities. (Id at 5-6). The various parks are patrolled by a security force connected to the Parks and Recreation Department as well as by the Lafayette Police Department. (Dep. Reed at p. 14). The Superintendent of the Parks and Recreation Department has delegated to the head of security the authority to ban individuals from the City's parks. (Mayes at 21). The Superintendent admits that there are no documents or written procedures for banning individuals from the parks.[1]
Ban orders are typically issued in instances where teenagers or young adults have destroyed property or interfered with other park patrons. (Mayes at 17-18). The ban order is issued and the individual is then informed that if he or she returns to the park during the time that the order is in effect he or she will be arrested for trespass. (Id. at 20). Typically, ban orders are issued for a week or a summer in duration. (Id. at 19). In this instance, Doe was issued a permanent ban order from all city parks. (Reed at p. 10-13, Ex. 3).
Doe seeks a lifting of the ban order in order to partake in a softball league which he participated in before the ban order, attend events at Loeb Stadium in Columbian Park, and attend outings in the park if they should arise. Furthermore, he contends that the ban prevents him from walking in the park with his adult friends. (Id.).
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Here it is undeniable that the city has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. See Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) It is indisputable that state governments have important interests in seeking to secure the safety of their minor citizens. Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1489 (6th Cir.1995). The ban order as previously stated is narrowly tailored to the specific facts and circumstances involving Doe and therefore advances the legitimate goals of the city. See Thompson 250 F.3d at 407. Therefore the court finds that the ban order does not violate his substantive due process rights.
III. CONCLUSION
For the foregoing reasons the City of Lafayette's motion for summary judgment is now GRANTED. Each party to bear its own costs. IT IS SO ORDERED.
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