HomeMy WebLinkAboutCORRESPONDENCE_50AMitre-Ramirez, Norma
From: Huizar, Maria
Sent: Monday, May 21 , 2012 10:16 AM
To: Orozco, Norma
Cc: Trujillo, Rose Ann; Mitre-Ramirez, Norma
Subject: FW: Letter to City Council
Attachments: Scan_Doc01 53. pdf
Please make copies for Agenda packet and Council distribution. Thank you.
From: jmbellucci@aol.com [mailto:jmbellucci@aol.com]
Sent: Monday, May 21, 2012 8:33 AM
To: Huizar, Maria
Cc: Carvalho, Sonia R.
Subject: Letter to City Council
Dear City Clerk and City Attorney -Attached please find letter to the Mayor and City Council Members regarding an item
on tonight's agenda: proposed ordinance amending Chapter 1 O, Article XII of the Santa Ana Municipal Code pertaining to
proximity of "registered sex offenders" to children's facilities. The letter includes references to legal issues. I will attend
tonight's meeting and speak to the issues referenced in this letter, however, I thought it would be helpful for all particles if
the Council had a copy of the letter before the meeting. Please call me at (805) 896-7854 if you should have any
questions. I would appreciate an acknowledgement that you have received this E-mail. Thank you. Janice M. Bellucci,
Attorney-at-Law
Janice Bellucci, President
California Reform Sex Offender Laws
8721 Santa Monica Blvd., Box 855
Los Angeles, CA 90069
(805) 896-7854
CALIFORNIA REFORM SEX OFFENDER LAWS (CA RSOL)
8721 Santa Monica Boulevard, Box 855
Los Angeles, CA 90069
(805J, 896-7854
May 21, 2012
Miguel A. Pulido, Mayor
City of Santa Ana
60 Civic Center Ptaza
Santa Ana, CA
Re: Proposed Ordinance Amending Chapter 10, Article X11 of the Santa Ana Municipal
Code Pertaining to Proximity of "Registered Sex Offenders"' to Children's Facilities
Dear Mayor Pulido and City Council Members:
The City Council is scheduled today for a first rcadtng of a proposed ordinance that includes a vast array
of prohibitions for "registered sex offenders" within the Gity of Santa Ana. The stated purpose of the
proposed ordinance is to increase the safety of CIty residents, in general, and children, in particular.
However, the ordinance as currently drafted would have the opposite effect, that is, it would reduce the
safety of the City's residents. In addition, it would expose the City to significant legal liability which
would be costly to defend.
The proposed ordinance, as currently drafted, would prohibit all "sex offenders", that is anyone required
to register pursuant to California Penal Code section 290, from being on or within 300 feet of "a
children's facility". in Its definition of "children's facility", the proposed ordinance includes all schools,
day care centers, parks (excluding Sasscer Park), the Discovery Science Center, the Bowers Kidseum, the
McFadden Learning Center, the Newhope Branch Library, the Main Library, Kidworks and the Orange
County Children's Therapeutic Art Center.
California Reform Sex Offender Laws (CA RSOL), a statewide non-profit organization, is opposed to the
proposed ordinance for the reasons stated below. CA RSOL respectfully requests that the City of Santa
Ana delay further consideration of the proposed ordinance in order to allow further research on this
important and complex issue.
The [proposed ordinance is based upon inaccurate data
The proposed ordinance is based upon Inaccurate data which is included in both the background section
of the report from Police Chief Paul Walters as well as Paragraphs D, E, F, G and H of Section 1 of the
proposed ordinance. Specifically, both Chief Walter's report as well as Section 1 of the ordinance
contain inaccurate information, including but not limited to, the statement that there is a high
recidivism rate for "sex offenders", a rate which exceeds the recidivism rates for other offenses.
The referenced statements In the Police Chief s report as well as in the proposed ordinance arc also
inconsistent with recent data, including data from a 2010 report of the California Department of
Corrections and Rehabilitation. According to the data of that agency, the recidivism rate for "registered
sex offenders"' is 3.25 percent while on parole and 5 percent overall. (see California Sex Offender
Management Board ("CSOMB^) report, August 2011, pages 10 and 21, which can be found online at
www.casomb.org). These rates are is significantly lower than the recidivism rates for most other crimes
including armed robbery and burglary. (See CSOMB report, August 2011, page 10).
Paragraph E of Section 1, in particular, appears to base its incorrect assertion that °sex offenders' have a
high recidivism rate on an outdated 2003 report from the Department of Justice, Bureau of statistics.
The ordinance's references to that report are fundamentally flawed for two reasons.
First, the ordinance cites one statistic from that report out of context, that is, "released sex offenders
were four times more likely to be rearrested for a new sex crime". The proper content for the statement
is a reference to violent sex offenders and not everyone required by PC 290 to register. Second, the
ordinance fails to note two important subsequent findings in the same report: (1) only 5.3 percent of all
released sex offenders were rearrested for a sex crime and (2) only 3.3 percent of released child
molesters were rearrested for another sex crime against a child.
It is significant to note that the City does not propose to prohibit those convicted of crimes for which
there is a much higher recidivism rate, such as armed robbery and burglary, from the same activities
listed in the draft ordinance. The disproportionate appliation of the proposed prohibitions to only
"registered sex offenders" could be construed as a violation of the civil rights of registered sex
offenders° and thereby expose the Clty of Santa Ana to future legal challenges.
The proposed ordinance is also flawed because it is inconsistent with existing state law which prohibits
some, but not all, "registered sex offenders" from entering parks where children gather without express
permission. The scope of that state law, Penal Code §3053.8, is limited to "registered sex offenders"
who are on parole after serving in prison for certain offenses in which one or more of the victims was
under 14 years old. The City's passage of the proposed ordinance could be Interpreted as an illegal and
unenforceable preemption of that state law.
The orooosed ordinance is based upon faulty logic
Most sexual assaults do not occur in parks or other public places
The purpose of the proposed ordinance, as stated in section 10-700, is to "reduce the potential risk of
harm to children of our community"' by limiting the ability of °sex offenders to be in contact with
unsuspecting children in locations that are primarily designed for use by..., chidren". Tlxse locations
include public parks, schools, child care centers and public libraries.
The proposed ordinance is based upon faulty logic because most sexual assaults of children do not occur
in parks or other public places. A recent study, in fact, concluded that sex offenders do not meet or
perpetrate offenses in public or semi-public locations with great frequency. Instead, only 6.8 percent of
offenders met their victims in a public location while 82 percent of all sex offenses took place in a
private setting, such as a home -the home of the offender or the home of the victim. (See CSOMB
report, August 2011, page li).
Most sexual assaults are not perpetrated by strangers
The proposed ordinance is also subject to judicial challenge because it is based upon a myth that the
perpetrators of sexual assaults on children are strangers unknown to the victims who lurk in public
places such as public parks. This myth is known as "Stranger Danger" and is not based upon fact. The
fact is that only 7 percent of the perpetrators of sexual assaults against children were identified as
strangers, according to the U.S. Bureau of Juvenile Statistics. The remaining 93 percent of the
perpetrators were either family members or adult acquaintances -including teachers, coaches and
members of the clergy -already known to the victim. (See CSOMB report, August 2011, page 11).
The orooosed ordinance is overiv broad and not tailored to the government interest
The proposed ordinance's stated method of protecting children is also subject to judicial review because
it is overly broad. That is, the proposed ordinance would apply to g_II "registered sex offenders" within
California. It would not be limited to the 242 residents of Santa Ana listed on the California Megan's law
website. Instead, the ordinance would apply to about 750,000 individuals listed on the nation's registry,
including more than 93,000 individuals listed on the California registry.
The proposed ordinance is overly broad, in part, because it does not distinguish between and among
individuals who are required to register after they have been convicted of asex-related offense. Such
offenses cover a broad spectrum and range from single non-violent acts such as public urination,
consensual teen sex, and "setting" to heinous violent acts such as multiple sexual assaults upon
children. The proposed ordinance is also overly broad because it does not distinguish between and
among registrants who are on probation or parele or who are beyond such restrictions.
In order to maintain its viability, an ordinance must be narrowly tailored to the government interest at
issue while still permitting legitimate activities of "regFstered sex offenders". An ordinance is subject to
strict scrutiny where fundamental constitutional rights are infringed upon. Legitimate activities of a
"registered sex offender" include federal constitutional rights protected by the 1", 4`", S1di, 8'", 10"' and
14"' amendments.
tt is doubtful that the proposed ordinance could prevail in a judicial challenge for one reason alone -its
ban of all "'registered sex offenders° from the city's public libraries. A federal Court of Appeals has
recently determined that a ban of all "registered sex offenders" from a city's public library violated a
registrant's First Amendment rights. The court, in that case, ordered the city to open its library to
registrants as well as to pay the significant attorney fees of the registrant. A court could also find that
legitimate activities of a "registered sex offender" include the right to walk, jog, or attend a family picnic
in a City park.
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Bill of attainder and ex post facto violations of federal law are also problematic whore a tenon-punitive"
or "regulatory" city ordinance, such as the proposed ordinance, is found to be actually punitive despite
stated legislative intent to the contrary as stated in Section 1, Paragraph J of the ordinance. The Santa
Ana City Council is on notice that these issues could be addressed in a constitutional challenge to the
proposed ordinance should it be enacted in its current form.
An ordinance that is not narrowy tailored can be construed as overly broad and struck down during
judicial review. In the proposed ordinance now under review, there is a blatant lack of balance
between the protection of public safety and the legitimate activities of a registered sex offender
protected by both the federal and state constitution.
For the reasons stated above, it would be prudent for the City Council of Santa Ana to delay a vote on
the proposed ordinance in order to additional time for City staff to identify, and the City Council to
consider, options that would result in a lawful ordinance not subject to judicial challenge. Given that the
City of Santa Ana has an existing "sex offender' ordinance and that no empirical data has been
presented that the city's children are In imminent danger, there is no reason for the City Council to
consider further the proposed ordinance at subsequent meetings.
Thank you for your attention to this important issue. Upon request, the California Reform Sex Offender
Laws organization is available to provide additional information to the City of Santa Ana on this issue.
Sincerely,
? . ?'?u.
ice M. Bellucci, President
California Reform Sex Offender Laws
Cc. Mayor Pro Tem Claudia Alvarez
Councilmember Vincent Sarmiento
Councilmember Michele Martinez
Councilmember Carlos Bustamente
Councilmember David Benavides
Councilmember Sal Tinajero
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