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Registered sex offender files lawsuit against city
By Heather M. Goodwin, hgoodwin@starlocalnews.com
A local man, and registered sex offender, recently filed a lawsuit stating that a city ordinance is unconstitutional.
Aurelio Duarte is a convicted sex offender. Last month, his lawyer Richard Gladden filed a lawsuit against Lewisville in the U.S. District Court. The lawsuit is alleging that the city ordinance that prohibits registered sex offenders from living within 1000 feet of areas "frequented" by children such as public parks, public or private schools, or day care centers, is unconstitutional.
"These ordinances are just a way to banish people that city council members don't like, people who are undesirable," Gladden, said.
Gladden said the ordinance is unconstitutional for the following reasons:
It is unconstitutional because it is retroactive. The ordinance was enacted after Duarte's misconduct.
It is unconstitutional because it imposes successive punishment. Gladden said the ordinance's restriction on residency is another punishment for Duarte.
It is unconstitutional because Duarte has a liberty interest and each member of his family has a liberty interest to live with each other anywhere they choose. Gladden said the city has not made any attempt at justifying the ordinance. He said under the due process clause, the city should have to give Duarte notice as to weather or not he poses a threat, so "some reasonable person" can determine Duarte's threat level before the city prohibits his family from living together.
Finally, Gladden said the ordinance is unconstitutional because it states that if a registered sex offender is on probation in a state district court in Denton County, and a judge finds they are not a threat, they may qualify for exemption from the ordinance. Gladden said the ordinance doesn't provide the same opportunity for Duarte, which is a violation of the equal protection clause of the 14th amendment.
"This is irrational. I can't even envision why someone on probation should be given better treatment than someone who has completed probation," Gladden said.
Duarte has eight years left to register as a sex offender. In 2004, Gladden was caught attempting to solicit sex from a minor online. He was placed on probation, but in 2007 was found to have violated the terms of his probation so he served three years in prison.
"Back in 2004, Duarte was more or less entrapped. He was working as a computer technician trying to repair someone else's computer. He kept getting popups asking him to engage in a conversation and after a while began talking to the person," Gladden said. "He kept refusing to meet the underage female in person, but he did have an inappropriate conversation with her. He then found out that the person was an undercover officer."
The Duarte family said they have looked for a home in Lewisville. The family looked for a home for six weeks and was in contact with the Lewisville Police Department on "a daily basis" asking whether certain addresses complied with the ordinance, according to Gladden.
"The family has been living in the motel since June 2010. They have been looking for an attorney to file this suit for quite some time, but there are not a lot of lawyers comfortable with filing this sort of suit," Gladden said.
Gladden said almost every city in the area has a similar ordinance, so moving to another city isn't really an option for the Duarte's.
"Also, Mrs. Duarte has lived in Lewisville her whole life. The children have also lived here their whole lives," Gladden said. "Their younger daughter is 13 and moving to another city would be a disruption for her. They want to live in Lewisville, it's their home."
The Duarte's are seeking damages for the last two years of living in the motel. The suit is also asking the court to declare the ordinance unconstitutional.
"We want the court to prohibit the city from enforcing this in the future. We're also asking for attorney's fees from the city," Gladden said.
Now that the lawsuit has been filed, the defendant or the city of Lewisville is given a certain amount of time to file a written response stating if it admits or denies the factual claims and if it admits or denies the legal theory behind claims being made.
James Kunke, community relations and tourism director, said the city has no comment except to confirm that it has been notified of the lawsuit.
The following are comments from the readers.
In no way do they represent the view of Starlocalnews.com
In no way do they represent the view of Starlocalnews.com
sandman wrote on Apr 10, 2012 3:49 PM:
" Credible studies have shown that residency restrictions do not protect the public and may create communities that are less safe. Currently, there are over 67,000 people on the Texas sex offender regisrty with an average of 111 added every week. You or your loved one could be next. "
Maryintx wrote on Apr 10, 2012 3:52 PM:
" Studies conducted by the Minnesota Department of Corrections and Colorado Department of Public Safety have not shown any correlation between sex offender recidivism and living near schools or parks, or other places where children gather.
In 2006 , the Iowa County attorneys association reported that residency restrictions were causing offenders to become homeless, to change residences without notifying authorities, and to register false addresses or to simply just disappear. Additionally, they noted that there is no demonstrated protective effect of the residency requirement that
justifies the huge draining of scarce law enforcement resources in the effort to enforce the restriction.
These banishment provisions seem to be based on the irrational fear of stranger danger and the mistaken belief that those who have committed an offense will inevitably re-offend.
Decades of careful criminological research have concluded that stability and support increase the likelihood of successful reintegration for offenders, and public policies that make it more difficult for offenders to succeed may actually jeopardize public safety. "
In 2006 , the Iowa County attorneys association reported that residency restrictions were causing offenders to become homeless, to change residences without notifying authorities, and to register false addresses or to simply just disappear. Additionally, they noted that there is no demonstrated protective effect of the residency requirement that
justifies the huge draining of scarce law enforcement resources in the effort to enforce the restriction.
These banishment provisions seem to be based on the irrational fear of stranger danger and the mistaken belief that those who have committed an offense will inevitably re-offend.
Decades of careful criminological research have concluded that stability and support increase the likelihood of successful reintegration for offenders, and public policies that make it more difficult for offenders to succeed may actually jeopardize public safety. "
texmom3 wrote on Apr 10, 2012 4:51 PM:
" I simply do not understand why sex offenders are singled out? Why not murderers? Is it really OK to live next to them? At what point has a convicted criminal the right to re-enter society? Do we want to pay to have them locked up for the rest of their lives? If that were the case, how many people do you know would still be locked up? Let's face it, we all know someone who has made a mistake in their lives, and some of these "so-called" sex offenders are juveniles or adults who are no threat to society. They made a mistake, have paid their dues, and it is clearly documented that most never re-offend. Why can't any convicted criminal feel remorse for their mistakes, pay their dues, and re-enter society? Society is NOT safer by creating residency restrictions - it gives us a false sense of security. "
Ann73 wrote on Apr 10, 2012 8:04 PM:
" Too many on the registry either have no victim (officer posing as a 16-year-old online, etc.) or the "victim" was a willing 16-year-old girlfriend. While I think teens should wait, the fact is that most do not. Criminalizing teen sex has accomplished nothing other than adding needlessly to the registry. More than 100 names are added weekly in Texas alone. Limited resources should focus on those who actually pose a threat to our communities. "
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