Court Allows Sex Offender to Challenge Residency Restrictions

This week, the Fifth Circuit Court of Appeals issued an opinion in a case involving the City of Lewisville’s sex offender residency restriction ordinance.  The City’s ordinance prohibits registered sex offenders from residing within 1,500 feet of “where children commonly gather.”

Aurelio Duarte is a registered sex offender.  Duarte and his family sued the city, challenging the constitutionality of the ordinance.  Duarte claimed that he and his family have tried to find a house to rent or buy in Lewisville, but they have been unsuccessful because of the ordinance’s restrictions. 

The trial court concluded that the Duartes lacked standing and dismissed the case, and the Duartes appealed the decision.  The city argued that the Duartes lacked standing because they were never subjected to the ordinance’s restrictions.  More specifically, Duarte had never been cited or fined for violating the ordinance, and Duarte lived with his family at an address that was grandfathered by the ordinance.   The Duartes argued that the ordinance prohibited them from moving from the grandfathered address to any new residence in the city. 

The court of appeals looked at whether the Duartes established an “actual injury” for the purposes of standing to challenge the ordinance.  It concluded that Duarte was a target of the ordinance.  Duarte submitted evidence that his wife contacted the Lewisville County Sex Offender Registrar at least nine times to inquire about potential residences.  Six of the residences were in restricted areas, and the remaining three residences became unavailable in the time it took the Registrar to review those locations. 

The court concluded that Duarte prepared and attempted to buy or rent a house in the city, and the sex offender residency ordinance made this more difficult.  Therefore, Duarte has standing to challenge the ordinance.  The court also noted that Duarte’s wife and daughters also have standing, as the ordinance interfered with the Duartes’ lives “in a concrete and personal way.”

The court of appeals reversed the trial court’s decision and remanded the case back to the district court to address the merits.  Most similar ordinances around the country have ultimately been upheld.

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