Registered sex offender and family have standing to challenge City sex offender ordinance says U.S. 5th Circuit

Duarte v. City of Lewisville, Texas No. 13-40806 (5th Circuit, July 22, 2014).

This is a constitutional deprivation challenge brought by a registered sex offender and his wife and children challenging a City of Lewisville ordinance prohibiting them from living in an area 1500 from any area where “children commonly gather.”  The U.S. Court of Appeals for the 5th Circuit reversed the trial courts dismissal and held the Duartes properly asserted a constitutional challenge to the ordinance.

Duarte was convicted of online solicitation of a minor.  After his release from prison he returned to the City where his wife and children reside. In light of the ordinance, the Duartes moved into a 275-square-foot one-bedroom motel room located in a compliant area at the time showing an attempt to comply with the ordinance. However, a newly constructed school and semi-public school were constructed nearby making the motel room non-compliant. The Duartes attempted to find housing elsewhere, but due to housing locations constantly being close to areas which fall under the broad definition of “where children commonly gather” no housing they could obtain was compliant within the City. The trial court dismissed the wife and children under Rule 12 for a lack of standing and later granted summary judgment for the City.

The court first notes that the Duartes’ claims are not moot simply because they moved to another City in order to find compliant housing. The Duartes’ claims for monetary relief (including nominal damages) as a result of the ordinance avoid mootness. The court next held that to establish standing, a claimant must present (1) an actual or imminent injury that is concrete and particularized, (2) fairly traceable to the defendant’s conduct, and (3) redressable by a judgment in the plaintiff’s favor. As Duarte is the target of the ordinance, he has standing to challenge the ordinance. And the ordinance has very practical impact on families which the City’s arguments appear to ignore. The ordinance requires the wife and children to separate from their father in order for him to be compliant, which directly and personally impact their lives. Further, they need not establish they were entirely precluded from finding a compliant residence, but that the ordinance made it “differenetially more burdensome”  when compared to other individuals who do not fall under the ordinance’s scope. [Comment: We are talking about standing only, not whether the Duartes can establish an actual injury on the merits at trial.]  And while the parties dispute whether any injury is properly traceable to the ordinance (i.e. causation), taking the claims in a light most favorably to Duartes, the court held a reduction of available homes from “tens-of-thousands to 466 residences, of which only a handful were available to rent or purchase at a given time, is fairly traceable to the ordinance.” And since a judgment would make the available housing more open to the Duartes, their claims can be addressed by the court. As a result, the dismissals are reversed and the case remanded.

If you would like to read this opinion click here. Panel:  Justices SMITH, WIENER, and PRADO.  Opinion by Justice Prado. The attorney listed for Duarte is Richard Scott Gladden.  The attorney listed for the City is William Andrew Messer.


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