Cape Girardeau County prosecutor responds to sex offenders' suit over Halloween activities

Wednesday, October 22, 2008

A court date of Oct. 27 has been set in federal court in St. Louis to hear arguments in a recent lawsuit challenging a change in state law regarding sex offenders and attempting to monitor their Halloween activities.

The lawsuit involves an argument that vagueness in the statute create a situation where sex offenders do not know what specific Halloween activities are forbidden and that it violates due process by punishing them with a law that went into effect last summer, years after their sentences.

Monday, Cape Girardeau County Prosecuting Attorney Morley Swingle completed an answer to the motion filed Oct. 3 by the American Civil Liberties Union of Eastern Missouri on behalf of four convicted sex offenders.

Anthony Rothert, an attorney arguing the case for the ACLU, said that all four plaintiffs have either custody of their own children or stepchildren, or regularly have contact with child relatives.

Because the statute fails to explain exactly what Halloween activities must be avoided, it could hinder their ability to take care of their own children, Rothert said.

Swingle filed the opposition on behalf of himself and Cape Girardeau police chief Carl Kinnison, named as defendants in the lawsuit because one of the plaintiffs is a resident of Cape Girardeau, though the offense was committed in another county.

The lawsuit seeks to have a court issue an injunction that would ultimately prevent Kinnison, Swingle and the other law enforcement personnel named from enforcing the disputed portions of the new law on Halloween.

The statute requires all registered sex offenders to avoid "all Halloween-related contact with children, remain inside their residence between 5 and 10:30 p.m. unless an emergency arises, leave all residential lighting off during that time, and post a sign outside saying 'no candy or treats at this residence.'"

Swingle argued in the seven-page motion that "without a crystal ball" there is no way to know if any registered sex offenders will even commit any violations of the law on Halloween and that any such crimes, if they do occur, will be addressed appropriately.

He also argued that federal case law has set a precedent for disapproving of any federal lawsuits seeking to interfere with state criminal proceedings that have a good-faith basis.

"Since the beginning of this country's history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts," Swingle wrote.

Swingle also argued that the possible unconstitutionality of the statute should not automatically pre-empt any good faith attempts to enforce it.

Swingle also questioned whether the plaintiffs showed any "great and immediate harm" by avoiding contact with children on Halloween.

He cited a recent "Saturday Night Live" skit suggesting an additional requirement to another state's similar law be made instructing them to take down the sign that read "if you can keep a special secret, knock on this door."

"This black humor emphasizes the reasonableness of the statute," Swingle wrote.

Attorneys from the ACLU and the Missouri state attorney general's office will argue the case at 9 a.m. Oct. 27 in St. Louis.

bdicosmo@semissourian.com

388-3635

Poll question

What, if any, additional restrictions should be placed on convicted sex offenders for Halloween?

They shouldn't have Halloween-related contact with children

They should stay inside between 5 and 10:30 p.m. Oct. 31

The should post signs saying no candy is available

All of the above restrictions are needed

The restrictions in place every day are enough

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