Minnesota sex offenders challenge a city's ban

Jan. 23--Three convicted rapists are suing the city of Dayton over an ordinance that virtually bans them from the city, arguing that the measure violates their Constitutional rights and is trumped by state law.

The men are challenging a far-reaching 2016 ordinance that bars convicted sex offenders from living within 2,000 feet of any school, day care center, park, playground, public bus stop -- or even pumpkin patch and apple orchard -- within the city of Dayton, a rural community of about 5,000 residents northwest of the Twin Cities.

Their suit argues that, because of the ordinance, the three offenders remain unjustly confined at the Minnesota Sex Offender Program (MSOP) facility in St. Peter -- more than a year after they were cleared for conditional release to a group home in Dayton. The lawsuit was filed this month in Hennepin County District Court.

The lawsuit is among the first legal challenges in Minnesota to residency restrictions against sex offenders, and could determine the fate of dozens of similar measures across the state. More than 40 localities have enacted such ordinances in just the last two years, amid a growing local backlash against state efforts to return sex offenders to the community.

The restrictions have created a dilemma for the state agency that oversees the MSOP, which is under legal pressure to release more offenders but is running out of community facilities where they can send them. A total of 12 offenders have been approved for conditional release from the program, but remain stuck at the program's treatment facilities as a large and growing swath of the state becomes off-limits to sex offenders.

"The current situation is untenable," said Eric Janus, a professor at Mitchell Hamline School of Law and author of a book on sex offender laws. "These former offenders are entitled to be released, yet they continue to be held, by local actions that are subverting state law."

Tim McNeil, the mayor of Dayton, said Tuesday that the city "intends to defend the ordinance to the extent that we can," but declined to comment further.

The push to enact such ordinances has intensified since the summer of 2015, when U.S. District Judge Donovan Frank ruled that the state's sex offender program was unconstitutional and ordered sweeping changes. While that ruling was overturned by a higher court, the state has been under pressure to show that it operates a viable treatment program and not simply confining them indefinitely as punishment.

In response, local governments rushed to pass residency restrictions before offenders moved into their communities. There are now a total of 85 communities in Minnesota with such restrictions, up from 44 in September 2016, according to the Minnesota Association for the Treatment of Sexual Abusers.

The ordinance passed by the Dayton City Council in October 2016 is unusually broad. Its long list of areas identified as off-limits to convicted sex offenders includes athletic fields, ice skating facilities, bowling alleys, dance academies and public libraries. The ordinance also bans offenders from distributing candy on Halloween, and makes it illegal for them to "leave an exterior porch light on" to attract trick-or-treaters.

Attorneys for the offenders argue that the ordinance is superseded by Minnesota's sex offender law, which regulates how and when a person civilly committed as a sex offender should be returned to the community. Under the law, offenders have a right to petition for release; and state panels have the sole authority to approve or reject them, according to the suit.

"These are individuals who have served their criminal sentences, and that professionals have determined are safe to return to the community in a limited setting," said Andrew Holly, a partner with the Minneapolis law firm Dorsey & Whitney LLP, which brought the suit. "By restricting them from living in the normal world, [the city of Dayton] is making it impossible to follow court orders and the appropriate state rules and regulations."

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