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Iowa Supreme Court Upholds Residency Limits

September 4, 2009

chicagotribune.com : Iowa court dismisses challenge to sex offender law.

The Iowa Supreme Court on Friday dismissed a challenge to a state law that bans certain sex offenders from living within 2,000 feet of schools and day care centers.

Robert Formaro argued, among other issues, that the law violated his right to travel and freedom of association. He claimed, for example, that it prohibited him from traveling to any location where he may fall asleep within the 2,000-foot zone. And, he said, it barred him from participating in overnight family gatherings and overnight stays at a hospital within the 2,000-foot zone.

Ruling in the case from Polk County, the court said the law dictates where Formaro may live, but doesn’t impede his freedom of travel or right to association.

“Formaro is free both day and night to attend political meetings, religious services, or other gatherings, both in and outside the protected zone,” the court said.

Formaro also claimed the law was vague, arguing the term “reside” doesn’t convey what conduct is prohibited.

In its ruling, the court said it’s clear the Legislature wanted to prevent sex offenders from living within 2,000 feet of a school or day care and “not casual sleep within a prohibited zone.”

“While the 2,000-foot rule impinges on where Formaro may establish a residence, there is no fundamental right to live where you want and certainly not one based upon the First Amendment,” the court said.

Court records show that Formaro was 15 when he was charged in 1998 of second-degree sexual abuse in juvenile court. He was convicted but not placed on the sex offender registry because the court found he was a low risk to reoffend. Two years later, he was accused of participating in a burglary. Formaro pleaded guilty and was sentenced to 10 year in prison and was placed on the state’s sexual offender registry.

He was released from prison in 2004 and lived with his parents in Ankeny with the approval of his parole officer.

In 2005, his new parole officer discovered his parents’ home was within 2,000 feet of an elementary school and told him he needed to move within five days.

He filed a petition claiming the law was unconstitutional, which a district court denied. He appealed to the Iowa Supreme Court.

Formaro’s attorney, Alfredo Parrish, said he was disappointed in the court’s ruling. “We think the right to travel is impinged by the 2,000-foot rule and we’re considering whether or not we have any additional grounds to take this up,” he said.

The Legislature revamped the law this year. It retains the 2,000-foot ban for schools and day care centers for those who have committed sex abuse against a child. It also puts in place a ban on offenders entering those places without permission, and it establishes a 300-foot “no loiter” zones around those sites.

Parrish says he’s considering asking the Iowa Supreme Court to reconsider the case. “I think some of the real issues we tried to address in Formaro are still out there and I think only through court review of the new statute are we going to be able to truly understand what impact it’s going to have on people affected by these rules,” he said.

Assistant Iowa Attorney General Mary Tabor said the decision upholds the 2,000-foot ruling in the new law.
“I think it would probably bode well for future constitutional challenges against the new statute as far as it’s application to a more narrow group of sex offenders,” she said.

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