Sex offenders challenge Lynn’s residency ban as unconstitutional

a court challenge to a Lynn ordinance that bans Level 2 and 3 sex offenders from living within 1,000 feet of a school or park could impact 43 other cities and towns across the state that limit where sex offenders can live or go.

A map of Lynn outlining areas from which Level 2 and 3 sex offenders are prohibited from living. Prohibited areas are higlighted in pink.

The suit in Essex Superior Court by the American Civil Liberties Union of Massachusetts alleges that Lynn’s residency ordinance violates both the state and federal constitutions because it unlawfully restricts offenders’ freedom. The complaint also claims that Lynn’s ordinance violates the Massachusetts home rule amendment, which forbids municipal laws from interfering with state policy.

John Reinstein, one of the Massachusetts ACLU lawyers representing the offenders, says they chose to bring the suit in Lynn because of the city’s size, the large number of offenders living there, and the scope of the restrictions. The suit alleges that about 95 percent of residential properties in the city are covered by the ordinance’s regulations prohibiting offenders from living in proximity to the city’s many parks and schools.

“There’s really nothing left after you get through drawing the circles around the facilities,” says Reinstein.

State law regarding sex offender management currently bans Level 3 offenders from living in nursing homes, rest homes, or intermediate care facilities for the mentally disabled. These restrictions are in addition to the state’s role in registering sex offenders and publishing Level 3 offenders’ information online. The Sex Offender Registry was the focus of a feature in CommonWealth’s spring issue.

A growing number of municipalities are taking the additional step of placing restrictions on where sex offenders can live, travel, or both. In cities such as Revere, Fitchburg, and Everett, sex offender residency ordinances typically prevent an offender from establishing a residence within a certain distance of a location frequented by children, such as a school or park.

Other restrictions involve banning offenders from visiting places where children may be present, like the public library. These restrictions are often deemed “child safety zones” and are found in communities such as Lowell, Fall River, and New Bedford. Some municipalities, such as Lynn and Spring­field, combine the two and ban offenders from both setting up a residence near child safety zones and visiting them. The ordinances have so far been untested by Massachusetts courts, and a decision on Lynn’s rule could open the door for challenges in other places or reinforce the restrictions communities have passed, according to legal experts.

The Lynn ordinance has already had an impact on at least one individual not involved in the lawsuit. Late last year, Richard Galzerano, a Level 3 sex offender, moved into a house on Daytona Road in Lynn near Shoemaker Elem­en­tary School, a move that represented the first cited violation of Lynn’s amended ordinance. Galzerano had been convicted in 2008 enticing a child under 16, according to the Sex Offender Registry Board’s website.

In early January, amid public outrage, the city started fining Galzerano $300 per day until he moved out later that month, according to news reports. The Sex Offender Registry Board’s website indicates Galzerano now lives in Peabody, which does not have a residency ordinance.

Lynn City Council President Timothy Phelan defends the ordinance and says he’s not concerned about how much space remains available to Level 2 and 3 sex offenders. “Not only do I think it’s a good ordinance but I think I have a responsibility and obligation to protect” children and the community, says Phelan.

Phelan says he will abide by the law if the judge strikes down the ordinance, but argues the community should have a say in where sex offenders can live. “I don’t need a judge to tell me what’s right and what’s wrong,” he says. “I think that every mother and father should be the judge in rendering this decision.”

Reinstein says no matter which way the court rules residential bans on sex offenders in any community could be affected. More specifically, if the court decides that Lynn’s ordinance indeed interferes with state policy, that finding would have larger implications for other communities than if the judge strikes it down on grounds specific to Lynn, says Rein­stein. Lynn city officials have agreed to refrain from enforcing the ordinance until a hearing occurs. A hearing has not yet been scheduled.

Fitchburg City Councilor Dean Tran played a key role in passing Fitchburg’s sex offender residency regulation, which restricts Level 2 and 3 offenders from living within 1,000 feet of any school, park, or child care facility. Tran says the Massachusetts ACLU made similar threats to sue when he worked on Fitchburg’s ordinance, and he pointed to a federal case in which a statewide sex offender residency restriction in Iowa was upheld.

“The organization never goes through with the threat simply because the circuit courts have already rendered favorable decisions for the ordinances. So a precedent has already been set at the federal level,” says Tran. “It would be a monumental task for the ACLU to try to overturn the ordinances that the cities and towns across the Common­wealth have enacted.”

Dr. Laurie Guidry, a clinical and forensic psychologist and the president of the Massachusetts Association for the Treatment of Sexual Abusers (MATSA), argues that residency restrictions have not been proven effective at keeping communities safe.

“We don’t want to keep [engaging in] practices and policies that don’t work. I certainly concur with the public’s concerns about being safe—it’s a priority,” says Guidry. “And if this measure actually kept communities safer, we, MATSA, would support it.”