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Feb 18 2015

NY Court: Low Level Sex Offenders Can Live Near Schools

The Court of Appeals, New York’s highest court, ruled yesterday that Nassau County and other localities don’t have the authority to restrict where convicted sex offenders can live. The Court voted 5-0 to strike down a 2006 Nassau County law that banned convicted sex offenders from living within 1,000 feet of a school; the Court held that only the state had the power to enact such a ban. Under current NY State law, the school ban can only be applied to Level 3 sex offenders – those at the highest risk of repeating their crimes or those with the worst and most severe prior criminal history. The Nassau ban had applied to sex offenders of any level.

lady justiceThere are currently more than 100 similar local ordinances around the state that set boundaries around parks, schools and other areas where children are likely to gather. All of those laws are now rendered invalid and unenforceable. In writing the opinion for the court, Justice Eugene Pigott emphasized that while such laws may have good intentions, the State’s police power is paramount in this scenario:

“A local government’s police power is not absolute. Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state.”

The law was passed in Nassau County in 2006. Former Nassau County Legislator David Mejias was the bill’s draftsman and sponsor. He stated that he was very disappointed in the court’s ruling and hoped that the State Legislature would move quickly to bring the State law in line with the Nassau County standard stating:

We worked very hard to draft a law that we were confident would pass muster. We researched local laws around the country that successfully fought off appellate challenges and modeled the language of this law after those statutes. Its disheartening to see the Court strike down a law designed to protect children from sexual predators. Albany needs to move quickly to address this issue and pass tighter restrictions on where sex offenders can reside.

While it is undoubtedly disturbing for folks who live near schools to think that a sex offender could move in next door to them and close to so many children, the Court of Appeals was bound y the law to act as it did. The unanimous Court decision shows the strong power given to the State to regulate a field of law if it so chooses. The Court held that by enacting various laws in the area of sex offender registration and residency, the State showed its clear intention to preempt local laws in this field. That means the ball is in the NY State Legislature’s court. Perhaps the Legislature will pass an amendment to the Sex Offender Registration Act and related laws some time soon; though various amendments have already been enacted over the years and no change was made in the level of offender prohibited from living near a school. Maybe this decision will highlight the need and desire for such legislation but many great proposals for legislation have died on the vine while waiting for Albany to act. This may be just one more.

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