Sex Offenders Banned From Owning in Amarillo Subdivision

[Newsjock]

Source: Associated Press

A subdivision has barred convicted sex offenders from owning or living in any new homes. G.R. Chapman Limited Partnership said the deed restriction will apply to new development within The Woodlands. The 550 existing homes are not affected.

... The deeds for new homes will stipulate that a homeowner cannot sell the home if the buyer or a future inhabitant is a sex offender. Violators will be required to sell the home and move.

Kent Canada, an attorney for the developer, said the homeowners association will periodically check the state online database of registered sex offenders. The group will be able to take legal action against violators, he said.

... Greg Lines, legal chair for the High Plains Chapter of the American Civil Liberties Union of Texas, said the sex offender ban could unfairly lump a wide range of offenders together. He cited an example of a man who was required to register as a sex offender because of a streaking incident.

Read more: http://ktla.trb.com/news/ktla-sex-offender,0,186026.story?coll=ktla-news-2

[kurth]

1. "A man was required to register as a sex offender because of a streaking incident"

[dysfunctional press]

2. well that seems entirely illegal...

i wonder how long before the supremes will be playing with that tune...?

[happyslug]

9. This is NOT Government action but private action, and the courts will uphold it.

This is a private action, someone who buys the property does NOT buy the right to sell it to someone who is a "Sex offender". These restrictions can be enforced by going to court. And given the state has the right to impose "reasonable" restrictions on Sex Offenders, the courts will enforce these restrictions. The only exception is if the Deed Restriction, if it was a stature, would be unconstitutional. The best example is the ruling by the US Supreme Court on Deed restrictions that forbidden selling the land to "non-whites". That was ruled to be unconstitutional for the courts to enforce for it such racial deed restrictions for such enforcements is state action to enforce the deed restriction and as such is unconstitutional. The states can NOT discriminate against people on grounds of Race. Prior to the 1964 Civil Rights Act it was illegal for the STATE to discriminate but private people could. Court enforcement of deeds restrictions was unconstitutional even before the passage of the 1964 Civil Rights Act.

Here there is NO constitutional Protection for Sex offenders (the 13th, 14th and 15th Amendment were passed to force both the Federal Government and the State Government treat blacks just like Whites, thus the above decision, but there is no similar constitutional provisions that covers Sex Offenders per se, through the provisions protecting the rights of ALL citizens also apply to sex offenders).

Thus, such deed restrictions are constitutional, even if they exclude sex offenders from the town (unlike Zoning laws and other Government restrictions which, if the law prevents someone from living in the town the law can be ruled to broad and thus unconstitutional).

The best comparison is with deed Restrictions the prevent anyone from selling alcohol from the land. Can the land still be used by the buyer? The answer is yes. Did the buyer knew of the Restriction? Yes, it is in the deed he buys the property with OR is in a prior Deed on record in the courthouse (and any buyer MUST check the prior deeds to make sure the seller owns the property and learn, what liens are on the property including any deed Restrictions). Such, no alcohol provisions where quite common in the late 1800s and early 1900s. The adding of such restrictions ended with prohibition (Why put in such a provisions when no alcohol could be sold anyway?) and never resumed with the repeal of Prohibition, but such provisions do show up every so often to this day. The Founder of the Borough of Moxham (Now part of the City of Johnstown Pennsylvania) had such provisions on ALL PROPERTIES in the borough. The founder first purchased the land, put in roads and then sold the house plots with the Deed Restriction). Thus you have no bars in the former Borough of Moxham do to these deed Restrictions. Please note right on the each of the borders of the old Borough of Moxham is a bar. These bars gets people to believe the deed restrictions do not apply, till they find out the deed restrictions are still valid and the Bars are located on land OUTSIDE the old Borough of Moxham and never had the restrictions put in their deeds (all are located in the City of Johnstown).

Anyway, the Alcohol deed restrictions have always been upheld, the same with these provisions regarding sex offenders. As a private action between private individuals such deed restrictions are legal. Given that the restrictions does NOT impose on the state any enforcement provision the state does NOT otherwise have, the Deed Restrictions are constitutional.

Another comparison is the recent Georgia Supreme Court ruling on such provisions PASSED AS A ZONING LAW (Or a provision of the Sentence, I have not read the decision as to what was the rationale behind the Statute). Unlike these Deed Restrictions, those were laws imposed on people without their consent. As such it restricted to whom the owner could sell his property to, while the owner of the property previous had such a right AND he received no compensation for the lost of the right to whom he could sell the property to. With a Deed Restrictions the Owner of the property WILL NEVER HAVE THE RIGHT TO SELL THE PROPERTY TO A SEX OFFENDER. That "Right" to sell the property to a Sex offenders was retained by the original owner of the property, the present owner NEVER had that right, thus it is NOT a taking. The present owner NEVER had the property right to sell the property to a Sex offender (He or she can sell the property to anyone else, but not a sex offender). Thus if a Sex Offender wants to buy the property he has to get two deeds, one from the present owner of the property and a second deed from the original owner to get the right to buy it as a sex offender). If a present owner of the property becomes a convicted Sex offender, he retains his right to sell the property but he never had the right to live in the house AS A CONVICTED SEX OFFENDER, and thus must sell the house (or more accurately NOT live in the house, he can still own it).

The Georgia case involves the taking of the property rights that the present owner purchased (i.e. NOT in the Deed). No one paid the present owner for this right, and he had it when he purchased the property, unlike a Deed Restriction where the present owner NEVER had the right set forth in the Deed Restriction. The courts have been quicker to strike down Zoning law restrictions then Parole restrictions, and almost never strikes down Deed Restrictions. Thus I see this law being upheld by almost any court.

[Guaranteed]

15. Sounds like you basically get it, but the private action doesn't matter so much.

http://www.infoplease.com/us/supreme-court/cases/ar38.html

Shelley v. Kramer. Classic case. The court won't enforce a covenant like this if it determines that the covenant itself violates the 14th Amendment (I guess you were saying this- but I'm not sure how you immediately can come to the conclusion that nothing in the 14th Amendment would protect sex offenders- perhaps this is overbroad?).

Anyway, the 14th Amendment will have to be addressed.

[happyslug]

16. The actual Decision males it clear RACE was a factor

The Decision:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0334_0001_ZO.html

The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. Seventy-five years ago, this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind. Upon full consideration, we have concluded that, in these cases, the States have acted to deny petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment. Having so decided, we find it unnecessary to consider whether petitioners have also been deprived of property without due process of law or denied privileges and immunities of citizens of the United States.

The court then footnotes a referral to the Slaughterhouse Cases of 1873:
http://www.law.cornell.edu/supct/search/display.html?terms=Slaughterhouse%20Cases&url=/supct/html/historics/USSC_CR_0083_0036_ZO.html

Basically the Slaughterhouse cases of 1873 was the first attempt to use the 15th amendment for general protections as opposed to protection of blacks. The court shot that down, holding the 15th must be considered along with the 14th and 13th amendments and all three amendments attempt to make blacks equal to whites. This has been the rule ever since. You can not view the 15th in isolation, you must also look at the 13th and 14th amendments to get full idea of what congress intended with all three amendments.

Now subsequent to the Slaughterhouse Cases the courts started to expand who was covered by the 15th amendment, to include Corporations and other citizens of the US (I do not mean to imply Corporations are Citizens but to point out other groups have used the 15th's Due Process Clause (and the whole Substantial Due Process concept which, while hinted after 1873, did not become the law till the Locher Decision of 1905). Substantial Due Process is the way the Bill of Rights was applied to the States AND why it was unconstitutional for the states to pass minimum wage and maximum hours laws (The Fifth Amendment was held to prevent the Federal Government from passing such laws). Both sets of decisions were reversed in the late 1930s, deferring economic Decisions to the Federal Congress and the State Legislature. But even given this history, unless there is a Statute forbidding such provisions (or a State Judge rules the action excessively interferes with the "alienability" of the property i.e. alienability of property means the ability to sell the property) I do NOT see Deed Restrictions that forbid "Sex Offenders" from owning a piece of property NOT being upheld.

[Guaranteed]

17. The 15th Amendment is the right to vote.

Due process would be at issue, yes- but that's the 14th, not the 15th, Amendment. That is where the Due Process Clause is found.

As far as due process is concerned, if, as others have stated in this thread, the law concerning sex offenders is so broad as to apply to those who have been cited for urinating in public, for example, that would be a problem. I'm not sure that strict scrutiny would be applied- but some level of scrutiny would be- to the law (the covenant, really- the court has to determine if it can enforce it), since a property interest is at issue, here, once a contract has been made (not to mention the Contract Impairment Clause) and the buyer has taken possession of the house.

[happyslug]

18. Deed Restrictions are generally enforced (Except for Race and national Origin).

The rationale is that the Court can enforce Contracts, and unless the Contract is invalid on its face (Such as Race and National Origin restrictions) the courts will tend to uphold them. Through MOST cases upholding Deed Restrictions do NOT forbid any person from living on the property, instead most restrictions are how the property are to be used (Such as my example of a Deed Restriction forbidding the Selling of alcohol). Other deed Restrictions can be tied in with HOW the property was obtained, for example if someone donated land to a Church (Or other charity) the deed may state that if the land MUST be used for Church (or Charity) purposes only (Often if this is the case and the Charity can no longer use the property, the Courts will tend to permit the land to be sold without the restriction PROVIDED the money is to be used by the Charity).

Again I remind you we are NOT discussing some Zoning Law or Law forbidding someone to live on these properties, but restrictions in the DEED for the property that "Retains" a property right is the hands of someone OTHER than the person who purchased the property. Thus you have TWO sets of Property Rights, the General Right to sell the property and even to live on the property held by the buyer of the property, and the RIGHT "Retained" by the Seller to permit (and in effect to forbid) sexual offenders on the property. Remember the deed Restrictions is basically saying the buyer of the property has NO RIGHT TO SELL OR PERMIT TO LIVE ON THE PROPERTY ANY SEXUAL OFFENDER. That property right is held by someone else.

Disputes between property owners are to be determined by the Courts. If the buyer wants to sell his property to a Sexual Offender, but the person who retains the right to sell to a Sexual Offender does NOT want to sell, you have a fight between different Property Owners (Through the real property in question is the same, the two sides own different Rights to that property).

Example of such dual property rights are more common than people like to admit. For example when I Rent a piece of property I have a PROPERTY RIGHT in the house I rent. The right is ONLY for a time period (Often a month or a year, Five years for Commercial businesses) but I have property rights in the Rental property. The Landlord also has a property right in that rental unit. The Rights of the Landlord and Tenant is often set by the lease, but if there is no lease the Landlord can NOT enter the Rental Property without the Tenant's permission (that is trespassing) AND the Tenant has a DUTY to preserve the Rental Property for the Landlord. Thus both landlord and Tenant have property interest in the same piece of real estate at the same time. If there is a dispute between these property rights the dispute is handled by the Courts. Someone has to handle these disputes.

The same here, you have dual ownership interest in these properties. Both are "Fee Simple" as that term is used within the law (i.e. Full blown ownership interest). When reviewing this restrictions we must remember who has what property interests AND the exceptions to those property interests. The 15th calls for Equal Protections of the Laws, but law PERMITS discrimination against felons or any one with any type of Criminal Record. This restriction is NOT the act of the local, State or Federal Government but of the present owners of the property. The Courts have ALWAYS given greater freedom to people to impose deed restrictions than the Courts give to local, state and Federal Government when such Government wants to impose restrictions over a similar area (i.e Zoning laws). The Cases calling into play restrictions as to where Sex Offenders can live have tended to be either Zoning laws, or Penal laws NOT deed Restrictions.

My point is simple I see the Courts upholding these Deed Restrictions. I fully expect Judges who throw out Zoning and Penal law restrictions, upholding Deed Restrictions, do to the fact the restrictions is NOT being imposed by the Government, all the Government is doing is enforcing Contracts between individuals as those Contracts are written (the Deed Restrictions). One way you can look at this, is the same Courts that will strike down any RESTRICTIONS IMPOSED by the State and Local Government as excessive denial of the right to live, will UPHOLD the local Courts who are NOT imposing they will of the property owners, just enforcing what two sides have already agreed to. Just like if a Landlord wants to evict a Tenant, except in Rent Control Areas (and the only two I know of is New York City and Berkley CA). Any Landlord can evict any Tenant at the end of any term of the Lease. Due Process kicks in if the dispute goes to court, but all the court will ask, "did you agree to the term?" and "Is that term over?" and if the question to both is Yes, the Tenant will be ordered out of the Rental Unit. The Sex offender faces the same basic rule. Is he or she a Sex Offender? Does the deed clearly state no sex offender is permitted on the property? Is the present owner a Sex Offenders? Does this discriminate against other Sex Offenders? If the first two question is yes and the third is NO, The courts will remove the Sex offender (Or otherwise enforce the Deed Restrictions).

[northzax]

28. so, can you alter a deed?

I mean you can add to one, right? can you remove things?

[Evergreen Emerald]

3. perhaps they should review the records of those required to register

I am amazed that a streaker is required to register as a sex offender, unless the streaker was doing something else besides running (!) The laws are not uniform throughout the US, but a streaker would not be a registerd sex offender in WA.

[Newsjock]

4. Guys caught holding hands in the park the 1930s

They're "sex offenders" in the eyes of the law in some places.

[kurth]

5. He grabbed girl's arm -- now he's a sex offender

He grabbed girl's arm -- now he's a sex offender
STEVE PATTERSON
Staff Reporter

Fitzroy Barnaby said he had to swerve to avoid hitting the 14- year-old Des Plaines girl who walked in front of his car.

She said he yelled, "Come here, little girl," before getting out of his car and grabbing her by the arm. He said he simply lectured her. She said she broke free and ran, fearful of what he'd do next.

In a Thursday ruling, the Appellate Court of Illinois said the 28- year-old Evanston man must register as a sex offender.

While acknowledging it might be "unfair for to suffer the stigmatization of being labeled a sex offender when his crime was not sexually motivated," the court said his actions are the type that are "often a precursor" to a child being abducted or molested.

Though Barnaby was acquitted of attempted kidnapping and child abduction charges stemming from the November 2002 incident, he was convicted of unlawful restraint of a minor -- which is a sex offense.

http://findarticles.com/p/articles/mi_qn4155/is_20050701/ai_n14807336

[ixion]

6. ah, so now there only need be a "precursor" to stigmatize someone for life

well, that certainly sounds constitutional to me. :sarcasm:

[Evergreen Emerald]

13. hmmm...apparently his side of the story was not believed.

[varkam]

14. He's guilty of Futurecrime, obviously.

These laws have really jumped the shark in recent years. :eyes:

[silverojo]

25. Though he isn't a sex offender

He had NO right to get out of his car, let alone grab the little girl's arm. If he'd stayed in the damned car where he belonged, he wouldn't have put himself in a situation where he was perceived to be a threat of any kind.

[Clovis Sangrail]

29. And she had NO right to walk out in front of a moving car

I think he may have crossed the line by grabbing her arm, but getting out and yelling at her?
I see no problem with that.

But... given the fact that now he's a "sex offender"... maybe he shouldn't have swerved.
Assuming he was going the speed limit, was driving safely, and was insured (not really enough information to know) he would likely serve no time and his legal problems would probably have been a fraction of what he can now expect for the rest of his life.

Chalk it up to being an accident.
I wonder if that will go through his mind the next time a kid runs in front of his car...

Isn't it wonderful the sort of logic that a screwed up semi-police state inspires?

[LanternWaste]

33. or, just as validly...

"Isn't it wonderful the sort of logic that a screwed up semi-police state inspires?"

or, just as validly...

"Isn't it wonderful the sort of logic that fear of your children getting abused inspires?"

[Eugene]

8. In Mass. you could be a registered sex offender for peeing in public.

The courts finally had to step in and tell
the state to sort out the real predators.

In New York, prostitution offenders are
registered and some politicians want new
restrictions on all offenders, including
them.

[DCKit]

10. "including them"....

The politicians want blanket immunity?

[sarcasmo]

21. Same in Michigan, peeing in public gets you on the list.

[noonwitch]

32. It depends on the county and the court system

Peeing in public doesn't get you on the list in Wayne County, but it might in Ottawa. Prostitution won't get you on the list in Wayne County, but I know it will in counties like Ottawa and Kent. Grabbing a dancer in a titty bar in any county will get you on the list, though-4th degree sexual misconduct.

[Psephos]

30. That's a good example of what can go wrong when PC becomes codified in law

Lots more of this kind of lunacy ahead, it seems.

[michreject]

19. Public urination gets you on the list

If you get caught pissing in a bush or in an alley at 3 in the morning, after the bars close, you're on the list for 30 years.

[MetaTrope]

7. A Texas neighborhood without Republicans?

That boggles the mind!

[Sam Ervin jret]

11. Does this include "family matters?"

[Dont_Bogart_the_Pretzel]

12. "Violators will be required to sell the home and move"

Sure...with the house bubble about to burst AND who would buy a house from an sex offender?!?! :sarcasm:

[sarcasmo]

20. Fat folks are next.

[Xenotime]

31. or gays...take your pick

[boricua79]

22. wouldn't have a problem with this

if it weren't for the fact that you can be on a sex offender list for really flimsy acts.

If it was restricted only to actual sexual offenders who harm others in their acts (rapists, incest, sexual molestation, pedophiles, etc.), then I really wouldn't have a problem with that.

Don't want to have problems getting home in the future...don't hurt people sexually.

[LiberalFighter]

23. Need to arrange for every homeowner and partners of the GR Chapman Lmtd

to be convicted of a sex offender crime.

[Alexander]

24. Seems like we need nationwide standards for who is a "sex offender".

As other DUers pointed out, in many states pissing in your back alley at 3 am can qualify as a sex offense.

It's pretty clear what we think of when we hear "sex offender". Rapists, child molesters, and people who deliberately expose themselves to others in public. People like that deserve to be on sex offender lists - not people whose only crime is streaking or pissing in a back alley.

[JCMach1]

26. Thought this thread said, 'Sex Offenders Banned From Owning an Armadillo' at first

But then reasoning and reading skills took over...

It was a happy, if confused few seconds....

[minnesota_liberal]

27. What's all the fuss about armadillos?

Same here. As a fan of "The Onion," I think the headline reads better that way.