NEW ORLEANS (CN) - A Texas man can sue a Dallas-area suburb over the constitutionality of its ban on registered sex offenders living within 1,500 feet of children, the 5th Circuit ruled.
Registered child sex offender Aurelio Duarte and his family sued Lewisville, Texas, after he tried and failed to find a house to rent or buy in the city that complied with the ordinance. He had earlier served eight years in state prison after a conviction of online solicitation of a minor. Duarte returned to Lewisville upon his release in 2009 and learned of the ordinance enacted one year earlier that bans registered child sex offenders from living within 1,500 feet of "where children commonly gather."
The family currently lives in a one-bedroom motel room to comply with the ordinance.
The trial court later dismissed they family's constitutional claims, concluding they lacked standing. A three-judge panel with the 5th Circuit disagreed, unanimously reversing and remanding the ruling Tuesday.
Writing for the panel, Judge Edward C. Prado said Duarte and his family have standing because they had "concrete" plans to live in Lewisville as opposed to indefinite plans.
"In order to find a place to rent or buy where the family could reside together, ultimately, the Duartes moved away, forcing the children to change schools and taking [wife] Wynjean Duarte farther from her job," the opinion stated. "The ordinance therefore interferes with the Duartes' lives 'in a concrete and personal way' which the Supreme Court has held is sufficient to confer standing."
Prado criticized the trial court for tossing the claim after combining "the actual-injury inquiry for standing purposes with the underlying merits of the Duartes' constitutional claims."
"The district court concluded Duarte lacked standing because he resided in a motel room grandfathered under the ordinance, and had not yet been cited or prosecuted under the ordinance," Prado wrote. "But 'it is not necessary that petitioner first expose himself to actual ... prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.' The Duartes' fears of liability are not 'imaginary or speculative.' Instead, their fears are based on correspondence with the Sex Offender Registrar warning against purchasing or renting specific properties. The district court rejected Duarte's argument that he had been 'all but prohibited ... from residing at any location within ... the City of Lewisville,' because three residences were available. But the Duartes need not show they were 'legally foreclosed from purchasing or leasing residential premises due solely to the ... City of Lewisville,' as the district court apparently believed. Instead, they need only show that the ordinance treats them differently from other would-be renters or homebuyers making it 'differentially more burdensome' for the Duartes to find a new place to live for standing purposes."
Lewisville officials did not immediately respond to a request for comment Tuesday evening.