California Supreme Court Rules on Sex Offender Residency Restrictions
On March 2, the California Supreme Court issued two much-anticipated decisions relating to sex offender residency restrictions: People v. Mosley, a facial challenge, and In re Taylor, an as-applied challenge. The decisions are helpful to jurisdictions navigating the constitutional minefields of regulating sex offenders.
In Mosley, after a jury trial in which the defendant was acquitted of lewd acts with a child under 14, but convicted of simple assault, the judge ordered Mosley to register as a sex offender. The trial judge’s order was based on the judge’s finding that Mosley committed his crime “as the result of sexual compulsion or for the purpose of sexual gratification,” a necessary finding under the sex offender registration statutes. Mosley appealed, arguing that while sex offender registration has been held not to be punitive, the parolee residency restrictions that accompany sex offender registration are punitive in nature and that as a result, the facts supporting that additional punishment must be found by the jury, not the judge. The Court of Appeal agreed, but the Supreme Court reversed. The Supreme Court held that, on its face, the sex offender residency restrictions in Penal Code § 3003.5 are regulatory rather than punitive in nature and are intended to promote public safety. The Court also noted that the restrictions are not akin to banishment and they do not dictate where he may travel, visit, shop, eat, work or play. Thus, the Court concluded the restriction was not facially unconstitutional. The Court also held that an as-applied challenge was not ripe, because the defendant was not alleged to have violated the residency restrictions. In footnote 15, the Court referenced the companion In Re Taylor case but noted that here there was no competent evidence of the actual effect on Moseley or on any other nonparolee registered sex offender in the state.
In contrast, the companion decision of In re Taylor was an as applied challenge. The Court held that the residency restrictions in San Diego, which were applied across the board to all registered sex offenders on parole, were unconstitutional in that the restriction violated the basic constitutional right to be free of unreasonable, arbitrary and oppressive official action. The court examined the factual record in which the California Department of Corrections and Rehabilitation (“CDCR”) did not contest that nearly 97% of rental housing was unavailable to registered sex offenders and this had resulted in a dramatic increase in homelessness. It found that the state’s interest in protecting minors’ safety was not served by the restriction. The CDCR did not dispute that homelessness rate among registered sex offenders had increased dramatically, or that housing units were not available to registered sex offenders. It did not dispute that the parole officers did not offer any guidance in finding a compliant residence. On this undisputed record, the Court held that while the CDCR retained discretion to impose individual residency restrictions on parolees, based on the particularized circumstances of each parolee, a blanket prohibition did not pass the rational basis test.
Taken together, these cases tell us that while residency restrictions may survive a facial challenge, it is imperative that when a jurisdiction adopts such a restriction that the evidentiary record must be extensive and provide the necessary support for the availability of housing and the fact that the restrictions are not drastic and do not eliminate all places to live. The analysis of a 2000 foot radius from schools and parks is very similar to land use mapping and analysis of available sites that is routinely done in the adult use setting. Of note, San Diego did not do any such analysis either when the ordinance was adopted nor after the fact. As well, citation to studies and evidence of likelihood of repeat offenders should be included along with explanation of the public interest that are at play building a solid supported record.