Judge: Parts law restricting sex offenders on Halloween will not be enforced

Tuesday, October 28, 2008

A federal judge ruled Monday that registered sex offenders in three Missouri counties, including Cape Girardeau County, will not be forced to comply Friday with certain parts of a new Missouri law restricting their movement and behavior on Halloween.

U.S. District Judge Carol E. Jackson listened to more than three hours of arguments in a lawsuit concerning the provisions in the statute, signed into law in June of this year, before deciding to uphold the sections requiring sex offenders to leave their outdoor lighting off during evening hours and post a sign at their home stating "no candy or treats at this residence."

The first two sections of the law, those barring any registered sex offender from having any Halloween-related contact with children and instructing them to remain inside their home from 5 to 10:30 p.m. Oct. 31, should not be enforced this Halloween in the three counties where the four plaintiffs reside, Cape Girardeau County, Pike County and St. Louis County. Those parts of the statute, Jackson said, were so vague they not only created problems for registered sex offenders in knowing what they were allowed to do but also for law enforcement in trying to enforce them.

As worded, Jackson asked if the statute could prohibit Halloween-related activities to carving a pumpkin in the privacy of one's home with their own 5-year-old child.

By failing to outline exactly what the law requires, Jackson said, she said enforcing it would violate due process by not giving the plaintiffs reasonable notice of what was considered illegal.

American Civil Liberties Union attorney Dave Nelson argued that the vagueness of the law was illustrated by a letter one of the plaintiffs, named as Jane Doe II, who resides in Cape Girardeau, received from the Cape Girardeau County Sheriff's Department.

The letter explained that she would not be allowed to engage in any Halloween-related contact with children for the entire "Halloween season."

"If you ask Macy's, Halloween season begins after the Fourth of July," Nelson said.

In order for Jackson to grant the motion so early in the lawsuit, the plaintiffs, represented by the ACLU of Eastern Missouri, had to show they would suffer "irreparable harm" if the law in its entirety were to be enforced Friday.

Since all four plaintiffs are either custodial parents, stepparents or have grandchildren for whom they frequently care, Jackson said preventing them from having contact with children on Halloween could be a serious problem.

"Halloween is a big deal for children -- we all know that. It could be very hurtful for a parent to have to tell their own child, 'I'm sorry, I can't take you trick or treating, and we can't even have a Halloween party at home,'" Jackson said.

Chris Quinn, representing Attorney General Jay Nixon and Gov. Matt Blunt in the lawsuit, argued the purpose behind the statute was "crystal clear," that it was seeking to protect children from sexual predators trolling the streets on Halloween and handing out candy to children.

"Everyone knows what Halloween-related contact is: dressing up in costume and asking for treats," Quinn said.

Each plaintiff was asked to sign a declaration outlining what they planned to do Oct. 31, and Jane Doe II said she wanted attend a public trick-or-treat event with her child, an event Cape Girardeau County Prosecuting Attorney Morley Swingle, named as a defendant in the suit, called a "smorgasbord of other people's kids."

Swingle said he believed that was the exact thing the legislature intended to prevent.

"It's too bad it wasn't worded clearly enough to survive a constitutional challenge," Swingle said.

bdicosmo@semissourian.com

388-3635

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