An emotionally charged Huntington Beach City Council voted Monday to ban all registered sex offenders from entering city parks, a move that went against the city attorney and police chief's recommendations and made the city's law even more stringent than the county's.
Following the Board of Supervisors' adoption of a similar law and a letter from Orange County District Attorney Tony Rackauckas urging cities to pass their own sex offender bans from parks, Mayor Joe Carchio and Councilman Matthew Harper asked the rest of the council in May to adopt one.
"I don't want to be sitting up here and say that I had the ability and didn't use it, and some child was abused," Carchio said.
Although City Attorney Jennifer McGrath and Chief of Police Ken Small gave the council several options from which to choose, the council with a 4-3 vote — with Connie Boardman, Keith Bohr and Joe Shaw dissenting — elected to pick the toughest alternative.
The version the council adopted, however, would likely violate the constitutional rights of offenders and open the door for lawsuits against the city, said UC Irvine School of Law Dean Erwin Chemerinsky, one of the nation's foremost constitutional scholars.
"It's the most restricted ordinance that's been adopted in the county," McGrath said.
McGrath and Small recommended the council adopt an ordinance that exempts parents with small children as well as employees or contractors who already work in city parks and need to enter for work purposes so that they don't lose their jobs. They also recommended limiting the definition of sex offenders to only those who committed violent acts, including raping children under 18.
Chemerinsky said limiting sex offenders from going to parks limits their movements and affects their livelihood.
"I think it would be unconstitutional to not have flexibility," he said. "The reality is that people have to have a place to live. A county, a city can't say, 'We don't want a sex offender to live here.' And the more restrictive an ordinance is, the less flexibility it has, the more likely to be declared unconstitutional."
Orange County District Attorney Chief of Staff Susan Schroeder told the council the ordinance is effective because it has already been used in Westminster to bring charges and a sentence against a violent offender who broke the city's law by going to a park twice.
Schroeder also argued that making exceptions could harm children. She gave the council an example of a man named George England, who adopted a girl whom he molested and used to lure children for that same purpose.
Shaw asked Schroeder if England was a registered sex offender at the time he committed the crimes. When the answer was no, Shaw said the county's ordinance and the city's attempt would not have saved those children.
"Studies show, in almost all cases, children get molested by people they know," he said. "Molesters don't go to parks and pick up children to molest."
When Schroeder attempted to give more examples, Boardman stopped her.
"I really don't need more examples," Boardman said. "I believe what you're saying, but I also believe that the children of sex offenders deserve to have access to parks."
The county's ordinance allows for some flexibility by permitting the Orange County Sheriff's Department, on a case-by-case basis, the discretion to give registered sex offenders written permission to temporarily enter county parks.
But even that provision is controversial.
Small asked the council to relieve him from the duty of giving prior approval to offenders if the council elected to pick the option that is closest to the county's. He said it would open the door for professional and personal liability if a registered sex offender committed a crime in a park that he or she were given access to through an approval.
That argument, however, has no basis, Chemerinsky said.
"There are so many cases that if the government releases someone from prison and he goes out and commits a crime, that doesn't make the government liable for the release," Chemerinsky said. "The cases are overwhelming about that."
Carchio said he can understand the potential liability on the city, but the council went on to pass the strictest ordinance.
"I'm more than happy to publicly say to sex offenders that in no way you're welcome in our parks," Councilman Don Hansen said. "I'm comfortable as a policymaker saying, 'Go somewhere else.'"
This type of law has already been challenged. An appeals court in Jeffersonville, Ind., sided with a man who sued for not being allowed to watch his son play Little League baseball. The man had a conviction for sexual battery against a 13-year-old.
In his case, the court ruled that the ordinance was unconstitutional because, before the law was enacted, the man had already fulfilled his obligation of registering as an offender.
Now Huntington Beach's ordinance, which takes effect in 30 days, would prohibit parents who are registered sex offenders from entering city parks with their children, regardless of their violation or how long it has been since they committed an offense.
The law would also prohibit employees or contractors who work in city parks and are registered sex offenders from entering city parks even for work purposes.
Offenders would be slapped with a misdemeanor punishable with up to $1,000 in fees and/or six months in jail.
"It might feel good, but I don't think it has a real effect," Bohr said.
Chemerinsky predicted that Huntington Beach's ordinance will likely be challenged in court.