Court strikes down local restrictionson locations of sex offenders' homes |
On Board Online • March 2, 2015
By Kimberly A. Fanniff
Senior Staff Attorney
School districts may wish to review how they disseminate information about sex offenders living in the community in light of a ruling by the state's highest court.
Many municipalities across the state have adopted laws prohibiting registered sex offenders from residing within certain distances from schools, as well as day care centers, parks and other places where children congregate. However, the Court of Appeals has stripped school districts of protections provided by such local laws.
In People v. Diack, a sex offender challenged the validity of Nassau County's law. The Court of Appeals ruled that adoption of such local residency restrictions is prohibited by the state's "comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of sex offenders."
According to the court, adoption of local residency restrictions encroaches upon the state's authority and hinders statewide uniformity concerning sex offender placement. It is not appropriate for any one community or county to bear an inappropriate burden in housing sex offenders because another community has created residential restrictions, according to the ruling. The court found the state had an "unmistakable intent" to pre-empt local municipalities from exercising their police power to adopt residency restrictions aimed at sex offenders.
With respect to school districts, the court specifically noted that the penal law prohibits level 3 sex offenders (deemed to be at "high risk of repeat offense") who have been placed on conditional release or parole from knowingly entering school grounds or other facilities where children are cared for while one or more persons under age 18 is present. (The exception is when they have written authorization from the superintendent of schools and either a probation officer or a court.) As defined in the law, school grounds include not only school buildings and grounds, but any area accessible to the public located within 1,000 feet of the real property line comprising a school.
This prohibition extends to individuals on parole, probation or conditional discharge for certain offenses and designated level 1 offenders (low risk of repeat offense) and level 2 offenders (moderate risk of repeat offense) if the victim was under the age of 18, unless they have written authorization from the superintendent of schools and either a probation officer or a court. (See "Sex offenders on school property" by the New York State Association of School Attorneys in the January 26, 2015 issue of On Board.)
According to the court, the practical effect of this prohibition is that any sex offender subject to the school grounds prohibition is unable to reside within 1,000 feet of a school. However, except as set forth above, state law places no such restrictions on where level 1 and 2 offenders may reside.
The effects of the court's ruling remain to be seen, but it could mean that school districts located in densely populated urban and suburban areas may now see an increase in lower level sex offenders residing near schools.
State law requires local police to inform school districts about sex offenders who settle within district boundaries. Districts may disclose and further disseminate such information, but there is no requirement to do so.
In light of the Diack ruling, school districts in communities where such residency restrictions previously existed may wish to review their policies and procedures related to dissemination of sex offender information. Districts should consult with their attorneys to determine if a change in policies and procedures is necessary so the district can be prepared to act consistently when notice of a sex offender residing near a school is received.