- The Washington Times - Wednesday, July 2, 2003

The mayor of an Indiana city that barred a convicted child molester for life from “window-shopping” in its parks said yesterday the city will challenge a federal appeals court decision nullifying that ban.

“Parents need to be able to send their kids to a park and know they’re going to be safe, not being window-shopped by a predator,” Lafayette Mayor Dave Heath told The Washington Times yesterday.

He authorized city attorney Jerome Withered to appeal the ruling that a man identified only as John Doe has a First Amendment right to visit city parks to contemplate having sex with children.

“We would not sanction criminal punishment of an individual with a criminal history of bank robbery simply because she or he stood in the parking lot of a bank and thought about robbing it, [or] punishment of a drug addict who stands outside a dealer’s house craving a hit,” two President Clinton appointees declared in the 2-1 decision by the 7th U.S. Circuit Court of Appeals in Chicago.

Doe’s attorney, Kenneth J. Falk of the American Civil Liberties Union, said yesterday he knows of no similar court action in which thought didn’t become deed and other lawyers agreed.

“I am unaware of any other case in the country like this. This focuses on your thoughts. Usually we don’t know what people think unless thought is tied to action. It’s really unique to be banned based on your thoughts,” said Mr. Falk, the Indianapolis lawyer widely known for suing governments that display the Ten Commandments.

In the decision issued Friday, the court related how Doe admitted fantasizing sexual conduct with children while watching them play baseball, and said he was banned solely for having “immoral thoughts.”

“The maxim that cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) is a cornerstone of the American common law system of criminal justice that has shaped many of the constitutional boundaries of criminal law,” said the opinion written by Circuit Judge Ann Claire Williams joined by Circuit Judge Diane P. Wood. Both were nominated to the appeals court by President Clinton, although Judge Williams was elevated from the U.S. District Court in Chicago to which she was named by President Reagan.

In a biting dissent, Circuit Judge Kenneth F. Ripple, a Reagan nominee, said Doe knew what his impulses could lead to. He ridiculed the finding that the First Amendment protects such behavior.

“He engaged in a sort of psychiatric brinksmanship by placing himself in a situation that increased substantially the possibility of his acting on these impulses,” Judge Ripple wrote, adopting the city argument that Doe was not punished for what he was thinking.

“He went to not one but two parks in search of children at play in order to achieve sexual gratification … and consequently became sexually aroused. In short, he engaged not only in thought but in activity directed toward an illegal and very harmful end,” Judge Ripple said.

Park officials levied the citywide lifetime ban — which includes the golf course, sports stadium and city pools — after police passed on a confidential tip that Doe had revealed the episode to other sex offenders in a support-group meeting.

Mr. Falk said members of a Sex-Offenders Anonymous group betrayed Doe to the police after Doe’s admission that he was “cruising” when he visited Columbian Park and Murdock Park. He also said he told his therapist about his cruising.

“He had urges. He went into the park. He felt urges toward the kids. He left the park. He was upset with himself,” Mr. Falk said.

He said Doe is registered as a sex offender and is not on probation, therefore he should not be restricted from public places unless he does something harmful.

“Forgetting the issue of sex offenses, anyone can be banned or removed from a park if they’re doing something harmful,” he said, questioning why the park system banned Doe alone out of more than 100 local registered sex offenders.

“We don’t have specific information about them,” Mr. Heath responded. “In this case we had the information and felt it was not only our right but our duty.”

Mr. Withered said he will ask the Appeals Court to rehear the case, but would not speculate on an eventual appeal to the Supreme Court.

The mayor said the cost of seeking another hearing or appealing to the Supreme Court could be high “but I think it’s going to be worth whatever it does cost.”

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