7th Circuit ruling will force registered sex offenders from homes

By Larry . . . NARSOL is disappointed to report that the United States Court of Appeals for the Seventh Circuit issued a decision affirming a lower court’s decision that will permit the Chicago Police to retroactively evict registered citizens from their homes to comply with the state’s residency restrictions. In Vasquez v. Foxx, 17-1061 (7th Cir. 2018) two registered citizens will now be required to comply with the state’s residency restriction because Illinois law provides that “a child sex offender may not knowingly live within 500 feet of a school, playground, or child-care center.” See 720 ILCS 5/11-9.3(b)(5) (b)(10).

The issue underlying the challenge was a 2008 amendment that prohibits child sex offenders from knowingly residing within 500 feet of a “day care home” or “group day care home.” (Act of Aug. 14, 2008, Pub. Act No. 95-821, 2008 Ill. Laws 1383) The   lawsuit alleged that: (1) the 2008 amendment to the residency statute imposes retroactive punishment in violation of the Ex Post Facto Clause; (2) application of the amended statute to them amounted to an unconstitutional taking of their property in violation of the Fifth Amendment’s Takings Clause; and (3) they asserted two due-process claims, one procedural and one substantive: they complained that the statute is enforced without a hearing for an individualized risk assessment and is not rationally related to a legitimate state interest.

The Seventh Circuit affirmed the trial court’s rejection of the lawsuit on the pleadings. The amended statute is neither impermissibly retroactive nor punitive. The Takings Clause claim was unexhausted in the state courts and the amendment was adopted before they acquired their homes, so it did not alter their property-rights expectations. The procedural found that the due process claim fails because there is no right to a hearing to establish a fact irrelevant to the statute. And the Appeals Court concluded by finding that the law “easily satisfies rational-basis review.”

Keep in mind that the “rational basis test” does not require that the government prove that the law achieves the stated purpose. Rather, to pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered more stringent. Rational basis review is generally used in cases where no fundamental rights or suspect classifications are at issue. The phrase “rational basis” was first described in U.S. v. Carolene Products (1938). In order for a statute or ordinance to pass rational basis review: (1) the statute or ordinance must have a legitimate state interest; and (2) there must be a rational connection between the statute’s/ordinance’s means and goals.

The attorneys have not yet decided if they will seek review of the Seventh Circuit’s decision by the United States Supreme Court.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

This topic contains 10 replies, has 2 voices, and was last updated by Avatar Tranace 3 months, 3 weeks ago.

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  • #43431 Reply
    Larry Neely
    Larry Neely
    Admin

    By Larry . . . NARSOL is disappointed to report that the United States Court of Appeals for the Seventh Circuit issued a decision affirming a lower co
    [See the full post at: 7th Circuit ruling will force registered sex offenders from homes]

  • #43458 Reply
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    Hank

    Ref: Footnote 6, p.13 of opinion. Would it have helped if they had developed an argument that it is facially unconstitutional under the takings clause ?

  • #43523 Reply
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    Saddles

    Larry, now your getting to some of the heart of the matter in all this. or should we say police are getting to their logical part of the matter. Larry it does seem that people want to justify themselves, in other words people don’t want to be wrong, it lowers there self-esteem. Did Einstein always want to be right? Well he was wrong several times. Sure if I was caught in the act I would be caught in the act of stealing. Now we all are talking about sex registry situation. Yes monthers are against their child getting molested.

    What that child does is up to their mentality. It seems law enforcment want to excute wrath but at the same time they show no mercy. You talked about a “raational basis test”. I sort of doubt if that test has any logic to it. Sure I can give you a reason as are we all not carnal but courts want to make waves. I’m sure we can all understand safety but can we understand each persons thought or intent or does someone have to provide the opportunity or flip a coin to see who takes that person to jail for driving over the speed limit. I would say rationally two wrongs don’t make a right when government is above the right if that makes it rational.

  • #43682 Reply
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    WC_TN

    I wonder if the lawyers pushing this case used the 6th Circuit ruling against Michigan’s retroactive application of the S.O.R. and it’s ever-increasing list of debilitating restrictions? If so, we have a split circuit and the S.C.O.T.U.S. needs to weigh in, although I’m reticent about a fair hearing in the Trump era.

    Rational Basis is just the court’s nice way of saying, “Do what you want to these people. I don’t give a crap about this segment of society. To hell with ’em for all I care!!”

  • #43686 Reply
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    WC_TN

    If RETROACTIVELY forcing a man out of his home and away from his family isn’t cruel and unusual punishment, then the term needs to be struck from American jurisprudence altogether.

    Our country is so full of two-faced hypocrites. No one is screaming or protesting in outrage when AMERICAN families are torn apart in this manner. Don’t you think that registrants have kids who love and need and want BOTH parents just the same as any other non-offender’s kids???? Everyone is ready to grab torches and pitchforks over the separation of illegal aliens, but not a word for how the laws under guise of “civil regulation” decimate no telling how many AMERICAN families all because one or the other committed a sex crime.

  • #43687 Reply
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    WC_TN

    “The Takings Clause claim was unexhausted in the state courts and the amendment was adopted before they acquired their homes, so it did not alter their property-rights expectations.”

    I have a question about the kinds of lawyers taking our cases:

    (1) Do they not have enough sense to know on what grounds their challenges would most likely fail? Lawyers are supposed to know the law, but somehow there are gaping holes in their arguments that give the court all the wiggle room they need to shoot these cases down cold. I’ve read that a poorly-developed challenge can poison the well for others who may come after them because a ruling on the issue has been made.

    Are the courts knowingly and maliciously moving the goal post in these cases so that those of us who challenge these punitive sex offender laws can never get a significant enough victory to stake them through the heart once and for all? Are our “honorable” judges honorable in the least?? I almost puke when I hear any judge referred to as “the honorable”.

    • #46515 Reply
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      JZ

      Sadly, justice in America is just another commodity. The quality is based on how much your lawyer is paid. If enough, he/she can bribe the judge and needed oaficials for a favorable ruling. America bemoans other countries for judicial corruption, but wallows in it itself.

  • #44037 Reply
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    james mayfield

    I sure hope that this ruling will be struck down in near future i would hate to see a slippery slope of retroactive laws being passed in other states where anyone on registry will have to move out of their residence. https://ojp.gov/smart/pdfs/AdultSexOffenderManagement.pdf // Black and white by our own Dept of Justice that residency restrictions are counterproductive so how can a lower court go against the reccomendations of a higher branch of government? I’m pretty ignorant of legal terms but i suppose i can start to memorize the jargon to educate myself on all this nonsensical laws being passed regarding registered citizens.

  • #44322 Reply
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    Tim L

    The 7th circuit is in Illinois correct?
    Here in Wisconsin we have a term for Illinois drivers who frequent our “up north” areas on the weekends. FIBs or Fu%$ing Illi@#$ Bastards drive like their in Chicago cutting people off. So I’m not surprised to hear about this property issue cause they are nutz. They were the first state in the nation to ban child sex offenders from owning property near schools. Those who already owned land conflicting with the law were not included in the first Megan’s law variant, but I knew it would eventually. Illinois opted to administer SOR via the STATE Police who behave like union thugs. The state is in serious financial trouble so property taking could be useful to some.

    So far SCOTUS has left the determination of the rule of state law to state Supreme court’s save N.C. Packingham. It will be interesting to see if it gets review.

  • #46749 Reply
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    d

    The bottom line here is when the court gets it wrong there must be a substantial penalty to the state(s) that they preside over. If you cannot sue when they get it wrong then there is no fear or reason to be cautious nor to follow the constitution.

  • #52336 Reply
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    Tranace

    I know the registry is unconstitutional
    So that needs to be dealt with so we dont have to talk about the 7th circuit
    Court ruling that should of never forced
    Anyone out of there home.

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