ScottC
(Indiana)
Posts:6
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| 08/05/2008 1:23 PM |
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Yesterday I saw that an HOA here in Indiana passed a covenant change to ban sex offenders. If they are already living there, they will be allowed to stay. From this point forward, sex offenders will not be able to move in. Also, any resident that becomes a sex offender will be required to move. Over 75% of the residents voted to approve the covenant change. A spokesman for the American Civil Liberties Union of Indiana said the ban was not unconstitutional because the homeowners association is a private organization and not a government body.
What are your thoughts on this? |
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MicheleD
(Kentucky)
Posts:1866
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| 08/05/2008 1:25 PM |
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| I think I would like to see a link to the source of this story before I comment. |
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ScottC
(Indiana)
Posts:6
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| 08/05/2008 1:26 PM |
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The link:
http://www.theindychannel.com/news/17093589/detail.html?taf=ind
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BradP
(Kansas)
Posts:1742
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| 08/05/2008 1:44 PM |
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I have seen a couple of these bans in some states and I will be interested to see how this holds up in a court of law if ever challenged. The thing that disturbs me about this is sex offenders are all lumped into one category, from the child rapist to the 18 year old boy or girl who has intercourse or oral sex with their 17 year old boyfriend/girlfriend.
The other thing that strikes me is the naive sense of the one resident who thinks that banning these people makes their neighborhood safe. It does not, as a parent I am well aware of registered sex offenders who live around us and I have talked to my children and made them aware that the person who lived there did something bad and to stay away. What concerns me is the person who hasn't been caught and is still out there and could live right next door to you, this to me is a false sense of security.
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KirkW1
(Texas)
Posts:1190
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| 08/05/2008 2:50 PM |
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"I think it's a good idea," said resident Erin Sheridan. "[To be] able to let the kids play outside without having to worry about who's watching."
This one says it all. And all this time I thought I should keep an eye on my children. I didn't know that I could simply pass a rule and shove my head in the sand. Parenthood has just gotten easier. 
(Oh, that is right if you happen to be the parent of a teenager you should be very afraid since one amorous night sits between you and the HOA. |
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BrianB
(California)
Posts:1748
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| 08/05/2008 3:18 PM |
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Oh, this is so much fun!
Given that you can be placed on the sex offender list for a crime that has nothing to do with sex, underage people, etc, this should turn out well. In one case, a judge ruled a career criminal (burglary, etc.) be registered as a sex offender so the state could track him better. I also believe there are lots of cases where public urination results in sex offender status.
Also, as pointed out, if your 16 year old has sex with another 16 year old, you could be moving soon, depending on the state laws! I love the comment "you are one amorous night away" from moving.
I also like the fact that the HOA might be able to prevent you from moving in, or even force you to move out, but they can't stop you from BUYING: I know for one, if i was forced out of my home by the HOA for this, I would get the renters from hell to move in, and make sure they knew EVERY loophole and detail to exploit in the HOA. Illegal to paint your home in X color? Tag it one night with spray paint, then drag your feet as long as possible in getting it repainted. Loud music up to 9:59 pm every night: Opera, rock, Screams and haunted house noises every day. Start again at 0600. Oil spills in my driveway, dead plants in the lawn, broken windows if i couldn't rent it.
I promise, i would know the rules better than the board, and push every one of them to the envelope!
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SusanW1
(Michigan)
Posts:2316
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| 08/05/2008 7:09 PM |
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I will wait for the class action civil rights suit to be filed.
I wonder if you can deny a person the right to purchase a home based on past criminal activity.
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BrianB
(California)
Posts:1748
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| 08/05/2008 11:13 PM |
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Posted By SusanW1 on 08/05/2008 7:09 PM
I will wait for the class action civil rights suit to be filed.
I wonder if you can deny a person the right to purchase a home based on past criminal activity.
It depends on the crime.
THIS HOA isn't stopping them from buying a home, just living in it, apparently. Not sure how legal that is either.
But, the State of Georgia has essentially told everyone on the sex offender list to get out of the state. It is illegal to live almost anywhere in Georgia if you are registered SO. There's a temp restraining order on part of that law, and lawsuits already, but still... |
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DJ1
(Ontario)
Posts:460
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| 08/06/2008 5:19 AM |
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| I agree 100% that Yeah it would be MUCH safer without a sex offender living in a HOA. My kids could play without me having to watch them....just HOPE the sex offender isn't living in the first house outside the HOA which would be like 20' here! Yeah, my kids will be MUCH safer...so long has the sex offender doesn't cross that invisible line surrounding the HOA. hehe |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 5:19 AM |
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Scott,
You may not be aware that the Indiana Court of Appeals ruled just a few months ago that a large part of the law regulating where sex offenders can life to be unconstitutional.
Courts in Indiana have held that "Indiana law permits restrictive covenants but finds them disfavored and justified only to the extent they are unambiguous and enforcement is not adverse to public policy." "When courts are called upon to interpret restrictive covenants, they are to be strictly construed, and all doubts should be resolved in favor of the free use of property and against restrictions."
http://www.in.gov/judiciary/opinions/pdf/11170605ewn.pdf
My guess is that the Appeals Court would find a private ban on sex offenders to be contrary to public policy.
Should be interesting. . . |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 6:06 AM |
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By the way, does everybody know about
Family Watchdog on the internet?
http://www.familywatchdog.us/
You can sign up to get e-mails whenever a registered sex offender moves nearby or moves away. There are also some great maps showing where registered sex offenders live and work.
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ScottC
(Indiana)
Posts:6
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| 08/06/2008 6:36 AM |
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George,
Can you provide a cite for the case you mentioned? I would like to read the case itself. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 6:45 AM |
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Scott,
Since I have the information at hand, here is the Appeals Court holding regarding sex offender laws on May 13, 2008:
For all of these reasons, we hold that Indiana Code section 35-42-4-11, otherwise known as the residency statute, is an ex post facto law as applied to a person in Pollard’s circumstances. The residency statute is a criminal statute that criminalizes residency because of the resident’s status as a sex offender. In addition, the statute’s effect is punitive because it is applied retroactively to sex offenders who established ownership and property rights in a residence prior to the effective date of the statute, and because it forces them to relinquish some or all of their ownership rights or face a felony charge. Perhaps most importantly, Indiana’s residency statute does not exempt ownership
established prior to the statute, provide a constitutional taking procedure, or exempt ownership impacted by later construction of a protected facility or area.
http://www.in.gov/judiciary/opinions/pdf/05130807pdm.pdf
Since this is a fairly clear statement of public policy, the Pines of Greenwood may have a fight on their hands if someone chooses to file suit. (The facts in Pollard are not quite the same as a potential purchaser, however.)
Also check out:
http://www.wthr.com/Global/story.asp?S=8701311&nav=menu188_2
Life sure is interestin', ain't it?
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 6:54 AM |
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There was a discussion here on this in April, I think:
http://www.hoatalk.com/tabid/55/forumid/1/view/topic/postid/43483/afsort/ASC/Default.aspx
I wonder what happens in the Pines of Greenwood, should a family with a registered teenage sex offender attempt to purchase? Does their new covenant provision prohibit ownership or residency, I wonder.
A very sticky wicket. |
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GlenL
(Ohio)
Posts:1466
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| 08/06/2008 7:26 AM |
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| IMHO it would be much better and easier to amend the Documents to allow a qualified pre-school or daycare operate in the HOA since most State and local laws prohibit a sex offender from living within X number of feet of them. You just have to decide what you hate worse - screaming kids or sex offenders. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 7:37 AM |
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Posted By GlenL on 08/06/2008 7:26 AM
IMHO it would be much better and easier to amend the Documents to allow a qualified pre-school or daycare operate in the HOA since most State and local laws prohibit a sex offender from living within X number of feet of them. You just have to decide what you hate worse - screaming kids or sex offenders.
Sadly, not correct in Hoosierland. And the example comes with an Ohio connection.
Seems a Hoosier teenager was convicted of a sex offense while visiting in Ohio and was therefore required to register after serving.
When his time was done, earlier this year, he was allowed to return to his permanent home which is next to a school, since that was his residence before the conviction. The Pollard ruling applied. Until he turned 21 and moved out just a few weeks ago, the Family Watchdog map clearly showed him living right by a school.
This is an area of law in considerable flux, it seems.
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ScottC
(Indiana)
Posts:6
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| 08/06/2008 7:46 AM |
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George,
I read the Pollard case and it would not apply to the Pines of Greenwood. The entire issue in Pollard is the fact that he owned the property before the law was passed. The Pines of Greenwood will not be attempting to ban offenders living there before the covenant change. The was clearly stated in an article in the Johnson County Daily Journal. It requires a subscription, so I cannot provide a link. |
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ScottC
(Indiana)
Posts:6
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| 08/06/2008 7:51 AM |
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Posted By GeorgerwilliamsW on 08/06/2008 5:19 AM
http://www.in.gov/judiciary/opinions/pdf/11170605ewn.pdf
George,
Could you check this link? I would like to read the actual case and this directs we to another discussion.
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 8:31 AM |
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I think I need a law clerk. I am citing too many cases. There is no wonder you are confused. Sorry.
As to Pollard, you are correct, the facts are not the same.
However, combined with the court's explicit statement of how covenants are to be interpreted, as stated in Johnson v. Dawson, et al., it would suggest that the court would tend toward disfavoring covenants in preference of individual property rights.
From the Channel 6 report, "The ban also stipulates that if a current resident is convicted of a crime that would qualify them as a sex offender, they will be evicted," appears, on the surface at least, to be contrary to the Appeals Court finding in Pollard.
This will be a fruitful area for a civil suit and for continued legislation. I hope the Pines of Greenwood homeowners association is prepared for multiple tens of thousands of dollars in legal fees.
I don't know where I stand on this issue. I do know two things. First registered sex offenders have to live somewhere. Second, the repeat rate for sex crimes is very high.
I do know that by prohibiting sex offenders from living within 1,000 feet of schools, day cares, churches, parks, playgrounds, etc. means they will end up being highly concentrated in very few areas. And we know that high concentrations of convicted felons leads to all sorts of nefarious outcomes.
I am not sure I want to be living next to a registered sex offender. Yet, not all offenses that must be registered (e.g. public nudity) are heinous crimes.
Not an easy situation to deal with at all. |
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MicheleD
(Kentucky)
Posts:1866
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| 08/06/2008 8:45 AM |
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We have a link on our state police website that does the same thing: tracks and show where sex offenders are living.
We check it out from time to time.
One thing that stunned me was that in our zip code, but several miles from our subdivision, is a concentration of close to 30 sex offenders, all living in the same apartment complex.
At one of our quarterly community information meetings with our police district, we asked if this was a half-way house of some kind.
It turns out it isn't. Some how, some way, all these guys just ended up living in the same apartment building. Some of the sex offenses involved children, some were for underage sex, many were for either rape or sexual assault of an adult.
The one comment the officer made was that they were totally aware of the concentration, they know where they are, and they can keep a pretty decent eye on them.
Still not comfortable with how that turned out though.
It's not that I don't believe in coincidences, it's that I find them highly unlikely. . . |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 9:04 AM |
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Michele,
That is exactly the problem I see as well. You hit the nail on the head.
All sorts of prohibitions about where they can live, means they will be concentrated in a very few areas, such as apartment complexes. And even though police will keep an eye on them, it doesn't mean that they will be able to prevent repeat crimes.
The law of unintended consequences is at work here. I think our legislatures need to think again about this whole thing. Maybe, not all "sex crimes" require such restrictions.
I don't know. |
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EllenS1
(Florida)
Posts:400
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| 08/06/2008 2:50 PM |
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| We had a sex offender forced to move. (He did not own here but was the son of an owner). In Florida they are not permitted to live a certain distance from a park. Since we have a park and he was too close to it the court required him to find other living accommodations. |
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BrianB
(California)
Posts:1748
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| 08/06/2008 2:56 PM |
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Just wait.
Soon, the AMA will classify some sex offenders as an illness: either genetic, or environmentally or behaviourally induced. Just like alcoholism, schizophrenia, depression, etc.
And once they do, SO's are protected by the ADA and FHA....
as for the earlier question: I would rather live with 300 sex offenders in my neighborhood than 2 screaming kids. but that's me.
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/06/2008 3:02 PM |
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Posted By EllenS1 on 08/06/2008 2:50 PM
We had a sex offender forced to move. (He did not own here but was the son of an owner). In Florida they are not permitted to live a certain distance from a park. Since we have a park and he was too close to it the court required him to find other living accommodations.
Now there is an idea. Dedicate some part of common area (say, one square inch) as a public park. That will prevent any registered sex offender from living within the neighborhood if there is a 1,000 foot rule in the law.
But soon, there will be a Sex Offender's Pride Parade, and the AMA will, as noted by Brian, make it into a disease, so it is a protected disability.
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EllenS1
(Florida)
Posts:400
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| 08/06/2008 3:04 PM |
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| I need to correct my former post. This middle aged man who was not an offender but a predator and abused a child for six years, was sentenced to 22 years in prison but served only 8. I figured since he had a place to live for the next 14 years (prison) there was no reason for my grandchildren to have to walk past his house every day to get to the school bus. |
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KirkW1
(Texas)
Posts:1190
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| 08/06/2008 4:56 PM |
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| I know I would not be in favor of passing such in my HOA until after a nearby HOA had already won (not just settled) a lawsuit. The suit could be very expensive and I just don't want to have to pay for it with my dues. |
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MaryA1
(Arizona)
Posts:2498
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| 08/07/2008 8:13 AM |
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| I was searching for some info on the web and read that until it is constitutionally challenged, SO's will continue to be banned from living in neighborhoods, regardless of the proximity to schools or parks. So, I guess, until the Supreme Court gets involved, the banning will continue. The problems created by this deal with tracking the SO's which is crucial. |
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GeorgerwilliamsW
(Indiana)
Posts:768
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| 08/07/2008 8:25 AM |
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Mary, could you provide the web link of the article you read.
I was under the impression that this was pretty much of a state issue, not something that would go to the U. S. Supreme Court.
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MaryA1
(Arizona)
Posts:2498
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| 08/07/2008 2:02 PM |
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Posted By GeorgerwilliamsW on 08/07/2008 8:25 AM
Mary, could you provide the web link of the article you read.
I was under the impression that this was pretty much of a state issue, not something that would go to the U. S. Supreme Court.
George,
I'm sorry, I didn't bookmark the site and I can't find it again. :-( However, in my search I did come across two interesting articles you might want to read:
www.missingkids.com click on "site search", type in "sex offenders", then click on "Sex Offenders - History"
www.aclu-nj.org click on "Issues", click on "Criminal Justice", scan down to "Op-ed" and click on "Why Sex Offenders Laws Do More Harm Than Good"
The ACLU has had several sex offender cases and they've argued that some of the laws are unconstitutional, mainly because there is no appeal process. I think it all stems from the fact that the title "sex offender" is applied to anyone who has been convicted of a "sex crime". In one case the sex offender had raped a 20 year old, he did not molest children. However, the law stated no sex offender can come w/i so many feet of a school or park. Most of the laws banning sex offenders deal with protection of children.
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