Oral arguments heard in sex offender residency appeal

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Map showing 1,500 foot exclusion zones (red) around various parks, pools, schools, daycares, and other places where children congregate. The ordinance has effectively taken the whole City of Lewisville as off-limits. (Via City of Lewisville Map Service)
Map showing 1,500 foot exclusion zones (red) around various parks, pools, schools, daycares, and other places where children congregate. The ordinance has effectively taken the whole City of Lewisville as off-limits. (Via City of Lewisville Map Service)

By LEOPOLD KNOPP
knopp@lewisvilletexan.org

Four years after the lawsuit was initially served, oral arguments on the Aurelio Duarte case were heard in late August in the 5th Circuit Court of Appeals in New Orleans.

First filed in 2012, the lawsuit concerns whether or not Lewisville’s sex offender residency restriction ordinance violates an offender’s 14th Amendment right to equal protection under the law. Duarte was convicted for online solicitation of a minor in 2006. When he was released from prison in 2010 as a registered sex offender, he came home to a wife who wished to keep working her two Lewisville jobs and two teenage daughters who wished to stay in their Lewisville schools. However, because of an ordinance that was passed two years after he was convicted, Duarte was restricted from living within 1,500 feet of wherever children commonly gather, and they were unable to find a place to live.

According to the Dallas Observer, in 2014, there were only 466 residences in Lewisville that would not violate Duarte’s restrictions.
District court initially dismissed the case in 2012 based on the city’s argument that Duarte had no specific right to live within its borders, his family members had no standing to sue since the restrictions did not apply to them and that since Duarte had not yet violated the law and incurred any penalty, he also had no standing to sue. The Duarte family appealed to the 5th Circuit Court, and the dismissal was reversed in 2014, meaning the suit would finally be tried in district court.

Duarte’s lawyer, Richard Gladden, argued that ex-convicts who have served their time should still have the right to decide where to live and suggested an individual assessment of Duarte would find these restrictions unnecessary.

“I don’t agree that a prior criminal conviction forever after disposes of any and all liberty interest of a person forever to choose where to live,” Gladden said. “The question is whether you’re going to adhere to the U.S. Supreme Court cases that say establishing a home is a liberty interest— in fact, they say it’s a fundamental liberty interest.”
Attorney William Messer, representing the City of Lewisville, maintained that Duarte does not have the constitutional right to live wherever he wants and that, as a sex offender, he is not protected under the Constitution.

“It is fair to say that we do not believe there’s any liberty interest at stake in this case,” Messer said. “He had process that was due and was given to him. He was tried and convicted by a jury. So, that process has taken place.”

Related: 10/19/2014 – Lewisville loses appeal on sex offender ordinance