Sept. 26, 2023 – A town ordinance that prohibits registered sex offenders from living within 1.25 miles of locations where children gather does not violate the U.S. Constitution’s Ex Post Facto clause, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Nelson v. Town of Paris, No. 22-2435 (Aug. 16, 2023), the Seventh Circuit also held additional evidence was necessary to determine whether a restriction on a registered sex offender living within 1.25 miles of another registered sex offender violated the Ex Post Facto clause.

Sex Offender Residency Ordinance

An ordinance enacted by the Town of Paris (Town) prohibits registered sex offenders from living within 6,500 feet of either: 1) a “Protected Location” – a term that includes, schools, daycare centers, parks, and playgrounds; or 2) another registered sex offender. The Town has designated ten Protected Locations.

The ordinance states that its purpose is to “promote, protect and improve the health, safety and welfare” of the Town’s citizens by prohibiting registered sex offenders from living near “locations where children regularly congregate in concentrated numbers.”

Too Close to Another Offender

In June 2017, Peter Nelson and his wife moved to Paris and took up residency at the Bristol Motel, which offers both nightly rentals and longer-term leases. Nelson is a registered sex offender.

The motel is not located within 6,500 feet of any of the town’s ten Protected Locations.

However, in June 2019, the Town sent Nelson a letter informing him that he was in violation of the ordinance because another registered sex offender lived within 6,500 feet of the motel.

Nelson applied for an exemption, as allowed under the ordinance. But the Town denied Nelson’s application and the Kenosha County Sheriff’s Office issued him a $500 citation.

The Nelsons looked for another place to live in the Town but found none that were affordable. So, they moved to Racine.

Federal Lawsuit

Nelson then sued the Town in the U.S. District Court for the Eastern District of Wisconsin under 42 U.S.C. section 1983. That statute authorizes a person to sue local officials acting under color of state law for federal constitutional violations.

Nelson claimed that the ordinance violated his right to substantive due process under the Fourteenth Amendment to the U.S. Constitution; he also argued that it violated the Constitution’s Ex Post Facto clause.

The district court granted summary judgment for the Town. Nelson appealed.

Punitive Intent?

Writing for a three-judge panel, Judge John Lee began his opinion by noting that the Town agreed that the ordinance was retroactive.

But that didn’t mean that it violated the Ex Post Facto clause, Lee explained – only retroactive laws intended by a legislature to be punitive violate the clause.

Nelson argued that the Town’s intent in enacting the ordinance was punitive because the effect of the ordinance was similar to supervised release and banishment.

Judge Lee relied on Hope v. Comm’r of Ind. Dep’t. of Corr., 9 F.4^th 513 (7^th Cir. 2021) to conclude that the effect of the ordinance was unlike supervised release.

“As in those cases, Paris’s restrictions control only where designated offenders may live; they do not control other any aspect of their lives, such as where they may work or congregate, or with whom they can interact,” Lee wrote.

Judge Lee reasoned that the prohibition on living within 6,500 feet of a Protection Location was unlike banishment because that restriction affected less than 30% of the housing stock in the Town.

But the prohibition on living within 6,500 feet of another offender was more akin to banishment, Judge Lee reasoned.

“The designated offender’s restriction creates a ceiling on the number of designated offenders that may be able to reside in Paris and, therefore, has a direct impact on the ability of designated offenders to move into Paris,” Lee wrote.

Judge Lee also reasoned that the ordinance had a rational connection to a non-punitive purpose – protecting children. As a result, he concluded that the Town had not enacted the ordinance with a punitive intent.

Non-punitive but Excessive?

However, Lee explained that a non-punitive ordinance can violate the Ex Post Facto if its effect related to a non-punitive purpose is excessive.

The effect of the ordinance’s restriction on living near Protected Locations was not excessive, Judge Lee reasoned, because that restriction affected less than 30% of housing stock in the Town.

But that wasn’t true of the restriction on living near other registered sex offenders, Lee concluded.

The Town had suggested that offenders who live near each other would have more opportunities to interact, and that such interaction could lead to increased recidivism.

Even if that were true, Judge Lee wrote, “it is entirely unclear from this record what this restriction adds to the security the protected locations restriction already provides to the town’s children.”

Remand is Appropriate

Lee concluded that Nelson had failed to prove that the restriction on living within 6,500 feet of a Protected Location violated the Ex Post Facto Clause.

However, he also concluded that the facts were in dispute regarding whether the restriction on living near other offenders was reasonably related to the Town’s legitimate interest in protecting children.

The Seventh Circuit remanded the case to the district court for an evidentiary hearing and additional consideration regarding the restriction on living near other offenders.

Judge Lee also concluded that Nelson’s substantive due process claim failed because the ordinance easily passed rational-basis review.

Nelson argued that the court should apply heightened scrutiny, but Lee reasoned that level of review wasn’t warranted.

“There is no facial animus toward sex offenders in the ordinance, the purpose of which is to protect children,” Judge Lee wrote.